JK 

318 

D74p 


DOUGLAS 

DIVIDING  LINE  BETWEEN 
FEDERAL  AND  LOCAL 
AUTHORITY 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 


Popular  Sovereignty  in  the  Territories. 


THE  DIVIDING  LINE 


BETWEEN 


FEDEKAL  AND  LOCAL 


AUTHOBITY. 


BY  STEPHEN  A.  DOUGLAS. 

ft, 

/A;. 


NEW    YORK: 

HAEPEK  &  BROTHERS,  PUBLISHERS, 

FRANKLIN     SQUARE. 

1859. 
[Reprinted  from  Harper's  Magazine] 


THE  DIVIDING  LINE 

BETWEEN 

FEDERAL  AND  LOCAL  AUTHORITY, 


POPULAR  SOVEREIGNTY  IN  THE  TERRITORIES, 

<£ 

-^.      UNDER  our  complex  system  of  government  it  is  the  first  duty  of 
American  statesmen  to  mark  distinctly  the  dividing  line  between 
J  Federal  and  Local  Authority.    To  do  this  with  accuracy  involves  an 
2  inquiry,  not  only  into  the  powers  and  duties  of  the  Federal  Govern- 
ment under  the  Constitution,  but  also  into  the  rights,  privileges,  and 
to  immunities  of  the  people  of  the  Territories,  as  well  as  of  the  States 
^  composing  the  Union.    The  relative  powers  and  functions  of  the 
^Federal  and  State  governments  have  become  well  understood  and 
S|  clearly  defined  by  their  practical  operation  and  harmonious  action  for 
SB  a  long  series  of  years ;  while  the  disputed  question — involving  the 
right  of  the  people  of  the  Territories  to  govern  themselves  in  respect 
H  to  their  local  affairs  and  internal  polity — remains  a  fruitful  source  of 
g  partisan  strife  and  sectional  controversy.    The  political  organization 
which  was  formed  in  1854,  and  has  assumed  the  name  of  the  Repub- 
lican Party,  is  based  on  the  theory  that  African  slavery,  as  it  exists 
in  this  country,  is  an  evil  of  such  magnitude — social,  moral,  and  polit- 
ical— as  to  justify  and  require  the  exertion  of  the  entire  power  and 
influence  of  the  Federal  Government  to  the  full  extent  that  the  Con- 
stitution, according  to  their  interpretation,  will  pejmit  for  its  ultimate 
extinction.    In  the  platform  of  principles  adopted  at  Philadelphia  by 
the  Republican  National  Convention  in  1856,  it  is  affirmed: 

"That  the  Constitution  confers  upon  Congress  sovereign  power  over  the  Territories 
of  the  United  States  for  their  government,  and  that  in  the  exercise  of  this  power  it  is 
both  the  right  and  the  duty  of  Congress  to  prohibit  in  the  Territories  those  twin  relics 
of  barbarism,  polygamy  and  slavery." 

According  to  the  theory  of  the  Republican  party  there  is  an  irre- 
pressible conflict  between  freedom  and  slavery,  free  labor  and  slave 
labor,  free  States  and  slave  States,  which  is  irreconcilable,  and  must 
continue  to  rage  with  increasing  fury  until  the  one  shall  become  uni- 

306595 


4  POPULAK  SOYEEEIGXTT  IX  THE  TEREITOKIES. 

versal  by  the  annihilation  of  the  other.    In  the  language  of  the  most 
eminent  and  authoritative  expounder  of  their  political  faith, 

"It  is  an  irrepressible  conflict  between  opposing  and  enduring  forces ;  and  it  means 
that  the  United  States  must  and  will,  sooner  or  later,  become  either  entirely  a  slave- 
holding  nation  or  entirely  a  free-labor  nation.  Either  the  cotton  and  rice  fields  of 
South  Carolina,  and  the  sugar  plantations  of  Louisiana  will  ultimately  be  tilled  by 
free  labor,  and  Charleston  and  New  Orleans  become  marts  for  legitimate  merchan- 
dise alone,  or  else  the  rye  fields  and  wheat  fields  of  Massachusetts  and  New  York  must 
again  be'surrendered  by  their  farmers  to  slave  culture  and  to  the  production  of  slaves, 
and  Boston  and  New  York  become  once  more  markets  for  trade  in  the  bodies  and 
souls  of  men." 

In  the  Illinois  canvass  of  1858  the  same  proposition  was  advocated 
and  defended  by  the  distinguished  Republican  standard-bearer  in 
these  words : 

"  In  my  opinion  it  [the  slavery  agitation]  will  not  cease  until  a  crisis  shall  have 
been  reached  and  passed.  '  A  house  divided  against  itself  can  not  stand. '  I  believe 
this  government  can  not  endure  permanently  half  slave  and  half  free.  I  do  not  ex- 
pect, the  house  to  fall,  but  I  do  expect  it  will  cease  to  be  divided.  It  will  become  all 
one  thing  or  all  the  other.  Either  the  opponents  of  slavery  will  arrest  the  farther 
spread  of  it,  and  place  it  where  the  public  mind  shall  rest  in  the  belief  that  it  is  in 
the  course  of  ultimate  extinction,  or  its  advocates  will  push  forward  till  it  shall  be- 
come alike  lawful  in  all  the  States — old  as  well  as  new,  North  as  well  as  South." 

Thus  it  will  be  seen,  that  under  the  auspices  of  a  political  party, 
which  claims  sovereignty  in  Congress  over  the  subject  of  slavery, 
there-  can  be  no  peace  on  the  slavery  question — no  truce  in  the  sec- 
tional strife — no  fraternity  between  the  North  and  South,  so  long  as 
this  Union  remains  as  our  fathers  made  it — divided  into  free  and 
slave  States,  with  the  right  on  the  part  of  each  to  retain  slavery  so 
long  as  it  chooses,  and  to  abolish  it  whenever  it  pleases. 

On  the  other  hand,  it  would  be  uncandid  to  deny  that,  while  the 
Democratic  party  is  a  unit  in  its  irreconcilable  opposition  to  the  doc- 
trines and  principles  of  the  Republican  party,  there  are  radical  differ- 
ences of  opinion  in  respect  to  the  powers  and  duties  of  Congress,  and 
the  rights  and  immunities  of  the  people  of  the  Territories  under  the 
Federal  Constitution,  which  seriously  disturb  its  harmony  and  threat- 
en its  integrity.  These  differences  of  opinion  arise  from  the  different 
interpretations  placed  on  the  Constitution  by  persons  who  belong  to 
one  of  the  folio  whig  classes : 

First. — Those  who  believe  that  the  Constitution  of  the  United 
States  neither  establishes  nor  prohibits  slavery  in  the  States  or  Ter- 
ritories beyond  the  power  of  the  people  legally  to  control  it,  but 
"  leaves  the  people  thereof  perfectly  free  to  form  and  regulate  their 
domestic  institutions  in  their  own  way,  subject  only  to  the  Constitu- 
tion of  the  United  States." 

Second. — Those  who  believe  that  the  Constitution  establishes 
slavery  in  the  Territories,  and  withholds  from  Congress  and  the  Ter- 


POPULAR   SOVEREIGNTY   IN   THE   TERRITORIES,  5 

ritorial  Legislature  the  power  to  control  it ;  and  who  insist  that,  in 
the  event  the  Territorial  Legislature  fails  to  enact  the  requisite  laws 
for  its  protection,  it  becomes  the  imperative  duty  of  Congress  to  in- 
terpose its  authority  and  furnish  such  protection. 

Third, — Those  who,  while  professing  to  believe  that  the  Constitu- 
tion establishes  slavery  hi  the  Territories  beyond  the  power  of  Con- 
gress or  the  Territorial  Legislature  to  control  it,  at  the  same  time 
protest  against  the  duty  of  Congress  to  interfere  for  its  protection ; 
but  insist  that  it  is  the  duty  of  the  Judiciary  to  protect  and  maintain 
slavery  in  the  Territories  without  any  law  upon  the  subject. 

By  a  careful  examination  of  the  second  and  third  propositions,  it 
will  be  seen  that  the  advocates  of  each  agree  on  the  theoretical  ques- 
tion, that  the  Constitution  establishes  slavery  in  the  Territories,  and 
compels  them  to  have  it  whether  they  want  it  or  not ;  and  differ  on 
the  practical  point,  whether  a  right  secured  by  the  Constitution  shall 
be  protected  by  an  act  of  Congress  when  all  other  remedies  fail. 
The  reason  assigned  for  not  protecting  by  law  a  right  secured  by  the 
Constitution  is,  that  it  is  the  duty  of  the  Courts  to  protect  slavery  in 
the  Territories  without  any  legislation  upon  the  subject.  How  the 
Courts  are  to  afford  protection  to  slaves  or  any  other  property,  where 
there  is  no  law  providing  remedies  and  imposing  penalties  and  con- 
ferring jurisdiction  upon  the  Courts  to  hear  and  determine  the  cases 
as  they  arise,  remains  to  be  explained. 

The  acts  of  Congress,  establishing  the  several  Territories  of  the 
United  States,  provide  that :  "  The  jurisdiction  of  the  several  Courts 
herein  provided  for,  both  appellate  and  original,  and  that  of  the  Pro- 
bate Courts  and  Justices  of  the  Peace,  shall  be  as  limited  by  law" — 
meaning  such  laws  as  the  Territorial  Legislatures  shall  from  time  to 
time  enact.  It  will  be  seen  that  the  judicial  tribunals  of  the  Territo- 
ries have  just  such  jurisdiction,  and  only  such,  in  respect  to  the  rights 
of  persons  and  property  pertaining  to  the  citizens  of  the  Territory  as 
the  Territorial  Legislature  shall  see  fit  to  confer ;  and  consequently, 
that  the  Courts  can  afford  protection  to  persons  and  property  no 
further  than  the  Legislature  shall,  by  law,  confer  the  jurisdiction,  and 
prescribe  the  remedies,  penalties,  and  modes  of  proceeding.  . 

It  is  difficult  to  conceive  how  any  person  who  believes  that  the 
Constitution  confers  the  right  of  protection  hi  the  enjoyment  of  slave 
property  in  the  Territories,  regardless  of  the  w^hes  of  the  people  and" 
of  the  action  of  the  Territorial  Legislature,  can  satisfy  his  conscience 
and  his  oath  of  fidelity  to  the  Constitution  in  withholding  such  Con- 
gressional legislation  as  may  be  essential  to  the  enjoyment  of  such 
right  under  the  Constitution.  Under  this  view  of  the  subject  it  is 
impossible  to  resist  the  conclusion  that,  if  the  Constitution  does  estab- 
lish slavery  in  the  Territories,  beyond  the  po'wer  of  the  people  to 


6  POPULAR   SOVEREIGNTY  IX  THE  TERRITORIES. 

control  it  by  law,  it  is  the  imperative  duty  of  Congress  to  supply  all 
the  legislation  necessary  to  its  protection ;  and  if  this  proposition  is 
not  true,  it  necessarily  results  that  the  Constitution  neither  establishes 
nor  prohibits  slavery  any  where,  but  leaves  the  people  of  each  State 
and  Territory  entirely  free  to  form  and  regulate  their  domestic  affairs 
to  suit  themselves,  without  the  intervention  of  Congress  or  of  any 
other  power  whatsoever. 

But  it  is  urged  with  great  plausibility  by  those  who  have  entire 
faith  in  the  soundness  of  the  proposition,  that  "  a  Territory  is  the 
mere  creature  of  Congress;  that  the  creature  can  not  be  clothed 
with  any  powers  not  possessed  by  the  creator ;  and  that  Congress, 
not  possessing  the  power  to  legislate  in  respect  to  African  slavery  in 
the  Territories,  can  not  delegate  to  a  Territorial  Legislature  any 
power  which  it  does  not  itself  possess." 

This  proposition  is  as  plausible  as  it  is  fallacious.  But  the  reverse 
of  it  is  true  as  a  general  rule.  Congress  can  not  delegate  to  a  Terri- 
torial Legislature,  or  to  'any  other  body  of  men  whatsoever,  any 
power  which  the  Constitution  has  vested  in  Congress.  In  other 
words :  Every  power  conferred  on  Congress  by  the  Constitution  must 
be  exercised  by  Congress  in  the  mode  prescribed  in  the  Constitution. 

Let  us  test  the  correctness  of  this  proposition  by  reference  to  the 
powers  of  Congress  as  defined  in  the  Constitution : 

'  The  Congress  shall  have  power — 

'  To  lay  and  collect  taxes,  duties,  imposts,  and  excises,"  etc. ; 

'  To  borrow  money  on  the  credit  of  the  United  States ;" 

'  To  regulate  commerce  with  foreign  nations,"  etc. ; 

'To  establish  a  uniform  rule  of  naturalization,"  etc. ; 

'  To  coin  money,  and  regulate  the  value  thereof ;" 

'  To  establish  post-offices  and  post-roads ;" 

'To  constitute  tribunals  inferior  to  the  Supreme  Court;" 

'To  declare  war,"  etc. ; 

'  To  provide  and  maintain  a  navy." 

This  list  might  be  extended  so  as  to  embrace  all  the  powers  con- 
ferred on  Congress  by  the  Constitution ;  but  enough  has  been  cited 
to  test  the  principle.  Will  it  be  contended  that  Congress  can  dele- 
gate any  one  of  these  powers  to  a  Territorial  Legislature  or  to  any 
tribunal  whatever  ?  Can  Congress  delegate  to  Kansas  the  power  to 
"  regulate  commerce,"  or  to  Nebraska  the  power  "  to  establish  uni- 
form rules  of  naturalization,"  or  to  Illinois  the  power  "to  coin  money 
and  regulate  the  value  thereof,"  or  to  Virginia  the  power  "  to  estab- 
lish post-offices  and  post-roads  ?" 

The  mere  statement  of  the  question  carries  with  it  the  emphatic 
answer,  that  Congress  can  not  delegate  any  power  which  it  does  pos- 
sess ;  but  that  every  power  conferred  on  Congress  by  the  Constitu- 
tion must  be  exercised  by  Congress  in  the  manner  prescribed  in  that 
instrument. 


POPULAR  SOVEREIGNTY   IN  THE  TERRITORIES.  7 

On  the  other  hand,  there  are  cases  in  which  Congress  may  estab- 
lish tribunals  and  local  governments,  and  invest  them  with  powers 
which  Congress  does  not  possess  and  can  not  exercise  under  the 
Constitution.  For  instance,  Congress  may  establish  courts  inferior 
to  the  Supreme  Court,  and  confer  upon  them  the  power  to  hear  and 
determine  cases,  and  render  judgments  affecting  the  life,  liberty,  and 
property  of  the  citizen,  without  itself  having  the  power  to  hear  and 
determine  such  causes,  render  judgments,  or  revise  or  annul  the  same. 
In  like  manner  Congress  may  institute  governments  for  the  Territo- 
ries, composed  of  an  executive,  judicial,  and  legislative  department ; 
and  may  confer  upon  the  Governor  all  the  executive  powers  and 
functions  of  the  Territory,  without  having  the  right  to  exercise  any 
one  of  those  powers  or  functions  itself. 

Congress  may  confer  upon  the  judicial  department  all  the  judicial 
powers  and  functions  of  the  Territory,  without  having  the  right  to 
hear  and  determine  a  cause,  or  render  a  judgment,  or  to  revise  or  annul 
any  decision  made  by  the  courts  so  established  by  Congress.  Con- 
gress may  also  confer  upon.the  legislative  department  of  the  Territory 
certain  legislative  powers  which  it  can  not  itself  exercise,  and  only 
such  as  Congress  can  not  exercise  under  the  Constitution.  The 
powers  which  Congress  may  thus  confer  but  can  not  exercise,  are 
such  as  relate  to  the  domestic  affairs  and  internal  polity  of  the  Ter- 
ritory, and  do  not  affect  the  general  welfare  of  the  Republic. 

This  dividing  line  between  Federal  and  Local  authority  was  famil- 
iar to  the  framers  of  the  Constitution.  It  is  clearly  defined  and  dis- 
tinctly marked  on  every  page  of  history  which  records  the  great 
events  of  that  immortal  struggle  between  the  American  Colonies  and 
the  British  Government,  which  resulted  in  the  establishment  of  our 
national  independence.  In  the  beginning  of  that  struggle  the  Col- 
onies neither  contemplated  nor  desired  independence.  In  all  their 
addresses  to  the  Crown,  and  to  the  Parliament,  and  to  the  people  of 
Great  Britain,  as  well  as  to  the  people  of  America,  they  averred  that 
as  loyal  British  subjects  they  deplored  the  causes  which  impelled 
their  separation  from  the  parent  country.  They  were  strongly  and 
affectionately  attached  to  the  Constitution,  civil  and  political  institu- 
tions and  jurisprudence  of  Great  Britain,  which  they  proudly  claimed 
as  the  birth-right  of  all  Englishmen,  and  desired  to  transmit  them  un- 
impaired $ls  a  precious  legacy  to  their  posterity.  For  a  long  series 
of  years  they  remonstrated  against  the  violation  of  their  inalienable 
rights  of  self-government  under  the  British  Constitution,  and  humbly 
petitioned  for  the  redress  of  their  grievances. 

They  acknowledged  and  affirmed  their  allegiance  to  the  Crown, 
their  affection  for  the  people,  and  their  devotion  to  the  Constitution 
of  Great  Britain;  and  their  only  complaint  was  that  they  were  not 


8  POPULAR  SOVEREIGNLY  IN  THE  TERRITORIES. 

permitted  to  enjoy  the  rights  and  privileges  of  self-government,  in 
the  management  of  their  internal  affairs  and  domestic  concerns,  in 
accordance  with  the  guaranties  of  that  Constitution  and  of  the  colo- 
nial charters  granted  by  the  Crown  in  pursuance  of  it.  They  con- 
ceded the  right  of  the  Imperial  government  to  make  all  laws  and 
perform  all  acts  concerning  the  Colonies,  which  were  in  their  nature 
Imperial  and  not  Colonial— which  affected  the  general  welfare  of  the 
Empire,  and  did  not  interfere  with  the  "  internal  polity"  of  the  Colo- 
nies. They  recognized  the  right  of  the  Imperial  government  to  de- 
clare war  and  make  peace ;  to  coin  money  and  determine  its  value ; 
to  make  treaties  and  conduct  intercourse  with  foreign  nations ;  to 
regulate  commerce  between  the  several  colonies,  and  between  each 
colony  and  the  parent  country,  and  with  foreign  countries ;  and  in 
general  they  recognized  the  right  of  the  Imperial  government  of 
Great  Britain  to  exercise  all  the  powers  and  authority  which,  under 
our  Federal  Constitution,  are  delegated  by  the  people  of  the  several 
States  to  the  Government  of  the  United  States. 

Recognizing  and  conceding  to  the  Imperial  government  all  these 
powers — including  the  right  to  institute  governments  for  the  Colonies, 
by  granting  charters  under  which  the  inhabitants  residing  within  the 
limits  of  any  specified  territory  might  be  organized  into  a  political 
community,  with  a  government  consisting  of  its  appropriate  depart- 
ments, executive,  legislative,  and  judicial ;  conceding  ah1  these  powers, 
the  Colonies  emphatically  denied  that  the  Imperial  government  had 
any  rightful  authority  to  impose  taxes  upon  them  without  their  con- 
sent, or  to  interfere  with  their  internal  polity ;  claiming  that  it  was 
J  the  birth-right  of  aU  Englishmen — inalienable  when  formed  into  a 
political  community — to  exercise  and  enjoy  all  the  rights,  privileges, 
and  immunities  of  self-government  in  respect  to  ah1  matters  and 
things  which  were  Local  and  not  General — Internal  and  not  Ex- 
ternal— Colonial  and  not  Imperial — as  fully  as  if  they  were  inhabit- 
ants of  England,  with  a  fair  representation  in  Parliament. 

Thus  it  appears  that  our  fathers  of  the  Revolution  were  contend- 
ing, not  for  Independence  in  the  first  instance,  but  for  the  inesti- 
mable right  of  Local  Self-Government  under  the  British  Constitution ; 
the  right  of  every  distinct  political  community — dependent  Colonies, 
Territories,  and  Provinces,  as  well  as  sovereign  States — to  make  their 
own  local  laws,  form  their  own  domestic  institutions,  and  manage 
their  own  internal  affairs  in  their  own  way,  subject  only  to  the  Con- 
stitution of  Great  Britain  as  the  paramount  law  of  the  Empire. 

The  government  of  Great  Britain  had  violated  this  inalienable  right 
of  local  self-government  by  a  long  series  of  acts  on  a  great  variety  of 
subjects.  The  first  serious  point  of  controversy  arose  on  the  slavery 
question  as  early  as  1699,  which  continued  a  fruitful  source  of  irrita- 


POPULAR   SOVEREIGNTY   IN   THE   TERRITORIES. 

tion  until  the  Revolution,  and  formed  one  of  the  causes  for  the  separa- 
tion of  the  colonies  from  the  British  Crown. 

For  more  than  forty  years  the  Provincial  Legislature  of  Virginia 
had  passed  laws  for  the  protection  and  encouragement  of  African 
slavery  within  her  limits.  This  policy  was  steadily  pursued  until  the 
white  inhabitants  of  Virginia  became  alarmed  for  their  own  safety,  in 
view  of  the  numerous  and  formidable  tribes  of  Indian  savages  which 
surrounded  and  threatened  the  feeble  white  settlements,  while  ship- 
loads of  African  savages  were  being  daily  landed  in  their  midst.  In 
order  to  check  and  restrain  a  policy  wrbich  seemed  to  threaten  the 
very  existence  of  the  colony,  the  Provincial  Legislature  enacted  a  law 
imposing  a  tax  upon  every  slave  who  should  be  brought  into  Virginia. 
The  British  merchants,  who  were  engaged  in  the  African  slave-trade, 
regarding  this  legislation  as  injurious  to  their  interests  and  in  viola- 
tion of  their  rights,  petitioned  the  Bang  of  England  and  his  Majesty's 
ministers  to  annul  the  obnoxious  law  and  protect  them  in  their  right 
to  carry  their  slaves  into  Virginia  and  all  other  British  colonies  which 
were  the  common  property  of  the  Empire — acquired  by  the  common 
blood  and  common  treasure — and  from  which  a  few  adventurers  who 
had  settled  on  the  Imperial  domain  by  his  Majesty's  sufferance,  had 
no  right  to  exclude  them  or  discriminate  against  their  property  by  a 
mere  Provincial  enactment.  Upon  a  full  consideration  of  the  subject 
the  King  graciously  granted  the  prayer  of  the  petitioners ;  and  ac- 
cordingly issued  peremptory  orders  to  the  Royal  Governor  of  Vir- 
ginia, and  to  the  Governors  of  all  the  other  British  colonies  in  Amer- 
ica, forbidding  them  to  sign  or  approve  any  Colonial  or  Provincial 
enactment  injurious  to  the  African  Slave-Trade,  unless  such  enactment 
should  contain  a  clause  suspending  its  operation  until  his  Majesty's 
pleasure  should  be  made  known  in  the  premises. 

Judge  Tucker,  in  his  Appendix  to  Blackstone,  refers  to  thirty-one 
acts  of  the  Provincial  Legislature  of  Virginia,  passed  at  various  peri- 
ods from  1662  to  1772,  upon  the  subject  of  African  slavery,  showing 
conclusively  that  Virginia  always  considered  this  as  one  of  the  ques- 
tions affecting  her  "  internal  polity,"  over  which  she,  in  common  with 
the  other  colonies,  claimed  "  the  right  of  exclusive  legislation  in  their 
Provincial  Legislatures"  within  their  respective  limits.  Some  of  these 
acts,  particularly  those  which  were  enacted  prior  to  the  year  1699, 
were  evidently  intended  to  foster  and  encourage,  as  weh1  as  to  regu- 
late and  control  African  slavery,  as  one  of  the  domestic  institutions 
of  the  colony.  The  act  of  1699,  and  most  of  the  enactments  subse- 
quent to  that  date,  were  as  obviously  designed  to  restrain  and  check 
the  growth  of  the  institution  with  the  view  of  confining  it  within  the 
limit  of  the  actual  necessities  of  the  community,  or  its  ultimate  ex- 
tinction, as  might  be  deemed  most  conducive  to  the  public  interests, 


10  POPHLAK   SOVEREIGNTY  IN  THE  TERRITORIES. 

by  a  system  of  unfriendly  legislation,  such  as  imposing  a  tax  on  all 
slaves  introduced  into  the  colony,  which  was  increased  and  renewed 
from  time  to  time,  as  occasion  required,  until  the  period  of  the  Rev- 
olution. Many  of  these  acts  never  took  effect,  in  consequence  of  the 
King  withholding  his  assent,  even  after  the  Governor  had  approved 
the  enactment,  in  cases  where  it  contained  a  clause  suspending  its 
operation  until  his  Majesty's  pleasure  should  be  made  known  in  the 
premises. 

In  1772  the  Provincial  Legislature  of  Virginia,  after  imposing  an- 
other tax  of  five  per  cent,  on  all  slaves  imported  into  the  colony,  pe- 
titioned the  King  to  remove  all  those  restraints  which  inhibited  his 
Majesty's  Governors  assenting  to  such  laws  as  might  check  so  very 
pernicious  a  commerce  as  slavery.  Of  this  petition  Judge  Tucker 
says  : 

"The  following  extract  from  a,  petition  to  the  Throne,  presented  from  the  House 
of  Burgesses  of  Virginia,  April  1st,  1772,  will  show  the  sense  of  the  people  of  Virginia 
on  the  subject  of  slavery  at  that  period : 

"  'The  importation  of  slaves  into  the  colony  from  the  coast  of  Africa  hath  long 
been  considered  as  a  trade  of  great  inhumanity ;  and  under  its  present  encourage- 
ment we  have  too  much  reason  to  fear  will  endanger  the  very  existence  of  your 
Majesty's  American  dominions.' " 

Mark  the  ominous  words !  Virginia  tells  the  King  of  England  in 
1772,  four  years  prior  to  the  Declaration  of  Independence,  that  his 
Majesty's  American  dominions  are  in  danger :  Not  because  of  the 
Stamp  duties — not  because  of  the  tax  on  Tea — not  because  of  his  at- 
tempts to  collect  revenue  in  America !  These  have  since  been  deem- 
ed suflicient  to  justify  rebellion  and  revolution.  But  none  of  these 
are  referred  to  by  Virginia  in  her  address  to  the  Throne — there  being 
another  wrong  which,  in  magnitude  and  enormity,  so  far  exceeded 
these  and  all  other  causes  of  complaint  that  the  very  existence  of  his 
Majesty's  American  dominions  depended  upon  it !  That  wrong  con- 
sisted in  forcing  African  slavery  upon  a  dependent  colony  without  her 
consent,  and  in  opposition  to  the  wishes  of  her  own  people ! 

The  people  of  Virginia  at  that  day  did  not  appreciate  the  force  of 
the  argument  used  by  the  British  merchants,  who  were  engaged  in 
the  African  slave-trade,  and  which  was  afterward  indorsed,  at  least 
by  implication,  by  the  King  and  his  Ministers;  that  the  Colonies 
were  the  common  property  of  the  Empire — acquired  by  the  com- 
mon blood  and  treasure — and  therefore  all  British  subjects  had  the 
right  to  carry  their  slaves  into  the  Colonies  and  hold  them  hi  defiance 
of  the  local  law  and  in  contempt  of  the  wishes  and  safety  of  the 
Colonies. 

The  people  of  Virginia  not  being  convinced  by  this  process  of 
reasoning,  still  adhered  to  the  doctrine  which  they  held  in  common 


POPULAR   SOVEREIGNTY  IX  THE  TERRITORIES.  11 

with  their  sister  colonies,  that  it  was  the  birth-right  of  all  freemen — 
inalienable  when  formed  Into  political  communities — to  exercise  ex- 
clusive legislation  in  respect  to  all  matters  pertaining  to  their  in- 
ternal polity — slavery  not  excepted ;  and  rather  than  surrender  this 
great  right  they  were  prepared  to  withdraw  their  allegiance  from  the 
Crown. 

Again  referring  to  this  petition  to  the  King,  the  same  learned 
Judge  adds : 

"This  petition  produced  no  effect,  as  appears  from  the  first  clause  of  our  [Vir- 
ginia] Constitution,  where,  among  other  acts  of  misrule,  the  inhuman  use  of  the 
Royal  negative  in  refusing  us  [the  people  of  Virginia]  permission  to  exclude  slavery 
from  us  by  law,  is  enumerated  among  the  reasons  for  separating  from  Great  Britain." 

This  clause  in  the  Constitution  of  Virginia,  referring  to  the  inhu- 
man use  of  the  Royal  negative,  in  refusing  the  Colony  of  Virginia 
permission  to  exclude  slavery  from  her  limits  by  law,  as  one  of  the 
reasons  for  separating  from  Great  Britain,  was  adopted  on  the  12th 
day  of  June,  1776,  three  weeks  and  one  day  previous  to  the  Declara- 
tion of  Independence  by  the  Continental  Congress;  and  after  remain- 
ing in  force  as  a  part  of  the  Constitution  for  a  period  of  fifty-four 
years,  was  re-adopted,  without  alteration,  by  the  Convention  which 
framed  the  new  Constitution  in  1830,  and  then  ratified  by  the  people 
as  a  part  of  the  new  Constitution ;  and  was  again  re-adopted  by  the 
Convention  which  amended  the  Constitution  in  1850,  and  again  rati- 
fied by  the  people  as  a  part  of  the  amended  Constitution,  and  at  this 
day  remains  a  portion  of  the  fundamental  law  of  Virginia — proclaim- 
ing to  the  world  and  to  posterity  that  one  of  the  reasons  for  separa- 
ting from  Great  Britain  was  "  the  inhuman  use  of  the  Royal  negative 
in  refusing  us  [the  Colony  of  Virginia]  permission  to  exclude  slavery 
from  us  by  law !" 

The  legislation  of  Virginia  on  this  subject  may  be  taken  as  a  fair 
sample  of  the  legislative  enactments  of  each  of  the  thirteen  Colonies, 
showing  conclusively  that  slavery  was  regarded  by  them  all  as  a  do- 
mestic question  to  be  regarded  and  determined  by  each  colony  to 
suit  itself,  without  the  intervention  of  the  British  Parliament  or  "the 
inhuman  use  of  the  Royal  negative."  Each  colony  passed  a  series 
of  enactments,  beginning  at  an  early  period  of  its  history  and  running 
down  to  the  commencement  of  the  Revolution,  either  protecting, 
regulating,  or  restraining  African  Slavery  within  its  respective  limits 
and  in  accordance  with  their  wishes  and  supposed  interests.  *  North 
and  South  Carolina,  following  the  example  of  Virginia,  at  first  en- 
couraged the  introduction  of  slaves,  until  the  number  increased  be- 
yond their  wants  and  necessities,  when  they  attempted  to  check  and 
restrain  the  further  growth  of  the  institution,  by  imposing  a  high  rate 
of  taxation  upon  all  slaves  which  should  be  brought  into  those  colo- 


12  POPULAR  SOVEREIGNTY   IN"  THE  TERRITORIES. 

nies;  and  finally,  in  17G4,  South  Carolina  passed  a  law  imposing  a 
penalty  of  one  hundred  pounds  (or  five  hundred  dollars)  for  every 
negro  slave  subsequently  introduced  into  that  colony. 

The  Colony  of  Georgia  was  originally  founded  on  strict  anti-slav- 
ery principles,  and  rigidly  maintained  this  policy  for  a  series  of  years, 
until  the  inhabitants  became  convinced  by  experience,  that,  with  their 
climate  and  productions,  slave  labor,  if  not  essential  to  their  existence, 
would  prove  beneficial  and  useful  to  their  material  interests.  Mary- 
land and  Delaware  protected  and  regulated  African  Slavery  as  one 
of  their  domestic  institutions.  Pennsylvania,  under  the  advice  of 
William  Perm,  substituted  fourteen  years'  service  and  perpetual  ad- 
script to  the  soil  for  hereditary  slavery,  and  attempted  to  legislate, 
not  for  the  total  abolition  of  slavery,  but  for  the  sanctity  of  marriage 
among  slaves,  and  for  their  personal  security.  New  Jersey,  New 
York,  and  Connecticut  recognized  African  Slavery  as  a  domestic  in- 
stitution lawfully  existing  within  their  respective  limits,  and  passed 
the  requisite  laws  for  its  control  and  regulation. 

Rhode  Island  provided  by  law  that  no  slave  should  serve  more 
than  ten  years,  at  the  end  of  which  time  he  was  to  be  set  free ;  and 
if  the  master  should  refuse  to  let  him  go  free,  or  sold  him  elsewhere 
for  a  longer  period  of  service,  he  was  subject  to  a  penalty  of  forty 
pounds,  which  was  supposed  at  that  period  to  be  nearly  double  the 
value  of  the  slave. 

Massachusetts  imposed  heavy  taxes  upon  all  slaves  broughj  into 
the  colony,  and  provided  in  some  instances  for  sending  the  slaves 
back  to  their  native  land ;  and  finally  prohibited  the  introduction  of 
any  more  slaves  into  the  colony  under  any  circumstances. 

When  New  Hampshire  passed  laws  which  were  designed  to  pre- 
vent the  introduction  of  any  more  slaves,  the  British  Cabinet  issued 
the  following  order  to  Governor  Wentworth  :  "  You  are  not  to  give 
your  assent  to,  or  pass  any  law  imposing  duties  upon  Negroes  im- 
ported into  New  Hampshire." 

While  the  legislation  of  the  several  colonies  exhibits  dissimilarity 
of  views,  founded  on  a  diversity  of  interests,  on  the  merits  and  policy 
of  slavery,  it  shows  conclusively  that  they  all  regarded  it  as  a  domes- 
tic question  affecting  their  internal  polity  in  respect  to  which  they 
were  entitled  to  a  full  and  exclusive  power  of  legislation  in  the  sev- 
eral provincial  Legislatures.  For  a  few  years  immediately  preceding 
the  American  Revolution  the  African  Slave-Trade  was  encouraged 
and  stimulated  by  the  British  Government  and  carried  on  with  more 
vigor  by  the  English  merchants  than  at  any  other  period  in  the  his- 
tory of  the  Colonies ;  and  this  fact,  taken  in  connection  with  the  ex- 
traordinary claim  asserted  in  the  memorable  Preamble  to  the  act  re- 
pealing the  Stamp  duties,  that  "  Parliament  possessed  the  right  to 


POPULAR   SOVEREIGNTY   IN   THE   TERRITORIES.  13 

bind  the  Colonies  in  all  cases  whatever,"  not  only  in  respect  to  all 
matters  affecting  the  general  welfare  of  the  empire,  but  also  in  regard 
to  the  domestic  relations  and  internal  polity  of  the  Colonies — pro- 
duced a  powerful  impression  upon  the  minds  of  the  colonists,  and  im- 
parted peculiar  prominence  to  the  principle  involved  in  the  controversy. 

Hence  the  enactments  by  the  several  colonial  Legislatures  calculated 
and  designed  to  restrain  and  prevent  the  increase  of  slaves ;  and,  on 
the  other  hand,  the  orders  issued  by  the  Crown  instructing  the  co- 
lonial Governors  not  to  sign  or  permit  any  legislative  enactment  preju- 
dicial or  injurious  to  the  African  Slave-Trade,  unless  such  enactment 
should  contain  a  clause  suspending  its  operation  until  the  royal  pleas- 
ure should  be  made  known  in  the  premises ;  or,  in  other  words,  un- 
til the  King  should  have  an  opportunity  of  annulling  the  acts  of  the 
colonial  Legislatures  by  the  "  inhuman  use  of  the  Royal  negative." 

Thus  the  policy  of  the  Colonies  on  the  slavery  question  had  as- 
sumed a  direct  antagonism  to  that  of  the  British  Government ;  and 
this  antagonism  not  only  added  to  the  importance  of  the  principle  of 
local  self-government  in  the  Colonies,  but  produced  a  general  concur- 
rence of  opinion  and  action  in  respect  to  the  question  of  slavery  in 
the  proceedings  of  the  Continental  Congress,  which  assembled  at 
Philadelphia  for  the  first  time  on  the  5th  of  September,  1774. 

On  the  14th  of  October  the  Congress  adopted  a  Bill  of  Rights  for 
the  Colonies,  in  the  form  of  a  series  of  resolutions,  in  which,  after  con- 
ceding to  the  British  Government  the  power  .to  regulate  commerce 
and  do  such  other  things  as  affected  the  general  welfare  of  the  em- 
pire without  interfering  with  the  internal  polity  of  the  Colonies,  they 
declared  "That  they  are  entitled  to  a.  free  and  exclusive  power  in 
their  several  provincial  Legislatures,  where  their  right  of  representa- 
tion can  alone  be  preserved,  in  all  cases  of  taxation  and  internal 
polity."  Having  thus  defined  the  principle  for  which  they  were  con- 
tending, the  Congress  proceeded  to  adopt  the  following  "  Peaceful 
Measures,"  which  they  still  hoped  would  be  sufficient  to  induce  com- 
pliance with  their  just  and  reasonable  demands.  These  "Peaceful 
Measures"  consisted  of  addresses  to  the  King,  to  the  Parliament,  and 
to  the  people  of  Great  Britain,  together  with  an  Association  of  Non- 
Intercourse  to  be  observed  and  maintained  so  long  as  their  grievances 
should  remain  unredressed. 

The  second  article  of  this  Association,  which  was  adopted  without 
opposition  and  signed  by  the  Delegates  from  all  the  Coloniesvwas  in 
these  words : 

"That  we  will  neither  import  nor  purchase  any  slave  imported  after  the  first  day 
of  December  next ;  after  which  time  we  will  wholly  discontinue  the  Slave-Trade, 
and  will  neither  be  concerned  in  it  ourselves,  nor  will  we  hire  our  vessels,  nor  sell 
our  commodities  or  manufactures  to  those  who  are  engaged  in  it. " 


14  POPTJLAB   SOVEREIGNTY   IN  THE  TERRITORIES. 

This  Bill  of  Rights,  together  with  these  articles  of  association,  were 
subsequently  submitted  to  and  adopted  by  each  of  the  thirteen  Colo- 
nies in  their  respective  provincial  Legislatures. 

Thus  was  distinctly  formed  between  the  Colonies  and  the  parent 
country  that  issue  .upon  which  the  Declaration  of  Independence  was 
founded  and  the  battles  of  the  Revolution  were  fought.  It  involved 
the  specific  claim  on  the  part  of  the  Colonies — denied  by  the  King 
and  Parliament — to  the  exclusive  right  of  legislation  touching  all 
local  and  internal  concerns,  slavery  included.  This  being  the  princi- 
ple involved  in  the  contest,  a  majority  of  the  Colonies  refused  to  per- 
mit their  Delegates  to  sign  the  Declaration  of  Independence  except 
upon  the  distinct  condition  and  express  reservation  to  each  colony 
of  the  exclusive  right  to  manage  and  control  its  local  concerns  and 
poh'ce  regulations  without  the  intervention  of  any  general  Congress 
which  might  be  established  for  the  United  Colonies. 

Let  us  cite  one  of  these  reservations  as  a  specimen  of  all,  showing 
conclusively  that  they  were  fighting  for  the  inalienable  right  of  local 
self-government,  with  the  clear  understanding  that  when  they  had 
succeeded  in  throwing  off  the  despotism  of  the  British  Parliament, 
no  Congressional  despotism  was  to  be  substituted  for  it : 

"We,  the  Delegates  of  Maryland,  in  convention  assembled,  do  declare  that  the 
King  of  Great  Britain  has  violated  his  compact  with  this  people,  and  that  they  owe 
no  allegiance  to  him.  We  have  therefore  thought  it  just  and  necessary  to  empower 
our  Deputies  in  Congress  to  join  with  a  majority  of  the  United  Colonies  in  declaring 
them  free  and  independent  States,  in  framing  such  further  confederation  between 
them,  in  making  foreign  alliances,  and  in  adopting  such  other  measures  as  shall  be 
judged  necessary  for  the  preservation  of  their  liberties : 

"  Provided,  the.  sole  and  exclusive  right  of  regulating  the  internal  polity  and  gov- 
ernment of  this  Colony  be  reserved  to  the  people  thereof. 

"We  have  also  thought  proper  to  call  a  new  convention  for  the  purpose  of  estab- 
lishing a,  government  in  this  Colony. 

"No  ambitious  views,  no  desire  of  independence,  induced  the  people  of  Maryland 
to  form  an  union  with  the  other  colonies.  T^o  procure  an  exemption  from  Parlia- 
mentary taxation,  and  to  continue  to  the  Legislatures  of  these  Colonies  the  sole  and 
exclusive  right  of  regulating  their  Internal  Polity,  was  our  original  and  only  motive. 
To  maintain  inviolate  our  liberties,  and  to  transmit  them  unimpaired  to  posterity, 
was  our  duty  and  first  wish ;  our  next,  to  continue  connected  with  and  dependent  on 
Great  Britain.  For  the  truth  of  these  assertions  we  appeal  to  that  Almighty  Being 
who  is  emphatically  styled  the  Searcher  of  hearts,  and  from  whose  omniscience  none 
is  concealed.  Relying  on  his  Divine  protection  and  assistance,  and  trusting  to  the 
justice  of  our  cause,  we  exhoi't  and  conjure  every  virtuous  citizen  to  join  cordially 
in  defense  of  our  common  rights,  and  in  maintenance  of  the  freedom  of  this  and  her 
sister  colonies." 

The  first  Plan  of  Federal  Government  adopted  for  the  United 
States  was  formed  during  the  Revolution,  and  is  usually  known  as 
"  The  Articles  of  Confederation."  By  these  Articles  it  was  provided 
that  "Each  State  retains  its  Sovereignty,  Freedom,  and  Independ- 


POPULAR   SOVEREIGNTY   IN   THE   TERRITORIES.  15 

ence,  and  every  power,  jurisdiction,  and  right  which'  is  not  by  this 
Confederation  expressly  delegated  to  the  United  States  in  Congress 
assembled." 

At  the  time  the  Articles  of  Confederation  were  adopted — July  9, 
1778 — the  United  States  held  no  lands  or  territory  in  common.  The 
entire  country — including  all  the  waste  and  unappropriated  lauds — 
embraced  within  or  pertaining  to  the  Confederacy,  belonged  to  and 
was  the  property  of  the  several  States  within  whose  limits  the  same 
was  situated. 

On  the  6th  day  of  September,  1780,  Congress  "recommended  to 
the  several  States  in  the  Union  having  claims  to  waste  and  unap- 
propriated lands  in  the  Western  country,  a  liberal  cession  to  the 
United  States  of  a  portion  of  their  respective  claims  for  the  common 
benefit  of  the  Union." 

On  the  20th  day  of  October,  1783,  the  Legislature  of  Virginia  pass- 
ed an  act  authorizing  the  Delegates  in  Congress  from  that  State  to 
convey  to  the  United  States  "  the  territory  or  tract  of  country  with- 
in the  limits  of  the  Virginia  Charter,  lying  and  bearing  to  the  north- 
west of  the  River  Ohio" — which  grant  was  to  be  made  upon  the 
"  condition  that  the  territory  so  ceded  shall  be  laid  out  and  formed 
into  States ;"  and  that  "  the  States  so  formed  shall  be  distinct  repub- 
lican States,  and  admitted  members  of  the  Federal  Union,  having  the 
same  rights  of  Sovereignty,  Freedom,  and  Independence  as  the  other 
States." 

On  the  1st  day  of  March,  1784,  Thomas  Jefferson  and  his  colleagues 
in  Congress  executed  the  deed  of  cession  in  pursuance  of  the  act  of 
the  Virginia  Legislature,  which  was  accepted  and  ordered  to  "be 
recorded  and  enrolled  among  the  acts  of  the  United  States  in  Con- 
gress assembled."  This  was  the  first  territory  ever  acquired,  held, 
or  owned  by  the  United  States.  On  the  same  day  of  the  deed  of 
cession  Mr.  Jefferson,  as  chairman  of  a  committee  which  had  been 
appointed,  consisting  of  Mr.  Jefferson  of  Virginia,  Mr.  Chase  of  Mary- 
land, and  Mr.  Ho  well  of  Rhode  Island,  submitted  to  Congress  "  a  plan 
for  the  temporary  government  of  the  territory  ceded  or  to  be  ceded 
by  the  individual  States  to  the  United  States." 

It  is  important  that  this  Jeffersonian  Plan  of  government  for  the 
Territories  should  be  carefully  considered  for  many  obvious  reasons. 
It  was  the  first  plan  of  government  for  the  Territories  ever  adopted 
in  the  United  States.  It  was  drawn  by  the  author  of  the  Declara- 
tion of  Independence,  and  revised  and  adopted  by  those  who  shaped 
the  issues  which  produced  the  Revolution,  and  formed  the  founda- 
tions upon  which  our  whole  American  system  of  governments  rests. 
It  was  not  intended  to  be  either  local  or  temporary  in  its  character, 
but  was  designed  to  apply  to  all  "  territory  ceded  or  to  be  ceded," 


16  POPULAR   SOVEREIGNTY   IN   THE   TERRITORIES. 

and  to  be  universal  in  its  application  and  eternal  in  its  duration, 
wherever  and  Avhenever  we  might  have  territory  requiring  a  govern- 
ment. It  ignored  the  right  of  Congress  to  legislate  for  the  people 
of  the  Territories  without  their  consent,  and  recognized  the  inalien- 
able right  of  the  people  of  the  Territories,  when  organized  into  polit- 
ical communities,  to  govern  themselves  in  respect  to  their  local  con- 
cerns ,  and  internal  polity.  It  was  adopted  by  the  Congress  of  the 
Confederation  on  the  23d  day  of  April,  1784,  and  stood  upon  the 
Statute  Book  as  a  general  and  permanent  plan  for  the  government 
of  all  territory  which  wev  then  owned  or  should  subsequently  acquire, 
with  a  provision  declaring  it  to  be  a  "Charter  of  Compact,"  and  that 
its  provisions  should  "  stand  as  fundamental  conditions  between  the 
thirteen  original  States  and  those  newly  described,  unalterable  but 
by  the  joint  consent  of  the  United  States  in  Congress  assembled,  and 
of  the  particular  State  within  which  such  alteration  is  proposed  to 
be  made."  Thus  this  Jeffersonian  Plan  for  the  government  of  the 
Territories — thjs  "  Charter  of  Compact" — "  these  fundamental  condi- 
tions," which  were  declared  to  be  "  unalterable"  without  the  consent 
of  the  people  of  "  the  particular  State  [territory]  within  which  such 
alteration  is  proposed  to  be  made,"  stood  on  the  Statute  Book  when 
the  Convention  assembled  at  Philadelphia  in  1787  and  proceeded  to 
form  the  Constitution  of  the  United  States. 

Now  let  us  examine  the  main  provisions  of  the  JefferSonian  Plan : 
First. — "That  the  territory  ceded  or  to  be  ceded  by  the  individual  States  to  the 
United  States,  whenever  the  same  shall  have  been  purchased  of  the  Indian  inhabit- 
ants and  offered  for  sale  by  the  United  States,  shall  be  formed  into  additional 
States,"  etc.,  etc. 

The  Plan  proceeds  to  designate  the  boundaries  and  territorial  ex- 
tent of  the  proposed  "  additional  States,"  and  then  provides : 

Second. — "That  the  settlers  within  the  territory  so  to  be  purchased  and  offered 
for  sale  shall,  either  on  their  own  petition  or  on  the  order  of  Congress,  receive  au- 
thority from  them,  with  appointments  of  time  and  place,  for  their  free  males  of  full 
age  to  meet  together  for  the  purpose  of  establishing  a  temporary  government  to  adopt 
the  Constitution  and  laws  of  any  one  of  these  States  [the  original  States],  so  that 
such  laws  nevertheless  shall  be  subject  to  alteration  by  their  ordinary  Legislature ;  and 
to  erect,  subject  to  like  alteration,  counties  or  townships  for  the  election  of  members 
for  their  Legislature." 

Having  thus  provided  a  mode  by  which  the  first  inhabitants  or 
settlers  of  the  territory  may  assemble  together  and  choose  for  them- 
selves the  Constitution  and  laws  of  some  one  of  the  original  thirteen 
States,  and  declare  the  same  in  force  for  the  government  of  their  ter- 
ritory temporarily,  with  the  right  on  the  part  of  the  people  to  change 
the  same,  through  their  local  Legislature,  as  they  may  see  proper, 
the  Plan  then  proceeds  to  point  out  the  mode  in  which  they  may 


POPULAR   SOVEREIGNTY   IX   THE   TERRITORIES.  17 

establish  for  themselves  "  a  permanent  Constitution  and  government," 
whenever  they  shall  have  twenty  thousand  inhabitants,  as  follows : 

Third. — "That  such  temporary  government  only  shall  continue  in  force  in  any 
State  until  it  shall  have  acquired  twenty  thousand  free  inhabitants,  when,  giving  due 
proof  thereof  to  Congress,  they  shall  receive  from  them  authority,  with  appointments 
of  time  and  place,  to  call  a  Convention  of  Kepresentatives  to  establish  a  permanent 
Constitution  and  government  for  themselves. " 

Having  thus  provided  for  the  first  settlers  "  a  temporary  govern- 
ment" in  these  "  additional  States,"  and  for  "  a  permanent  Constitu- 
tion and  government"  when  they  shall  have  acquired  twenty  thou- 
sand inhabitants,  the  Plan  contemplates  that  they  shall  continue  to 
govern  themselves  as  States,  having,  as  provided  in  the  Virginia  deed 
of  cession,  "  the  same  rights  of  sovereignty,  freedom,  and  independ- 
ence," in  respect  to  their  domestic  affairs  and  internal  polity,  "  as  the 
other  States,"  until  they  shall  have  a  population  equal  to  the  least 
numerous  of  the  original  thirteen  States ;  and  in  the  mean  time  shall 
keep  a  sitting  member  in  Congress,  with  a  right  of  debating  but  not 
of  voting^  when  they  shall  be  admitted  into  the  Union  on  an  equal 
footing  with  the  other  States,  as  follows : 

Fourth. — "That  whenever  any  of  the  said  States  shall  have  of  free  inhabitants  as 
many  as  shall  then  be  in  any  one  of  the  least  numerous  of  the  thirteen  original  States, 
such  State  shall  be  admitted  by  its  delegates  into  the  Congress  of  the  United  States 
on  an  equal  footing  with  the  said  original  States."  .... 

And— 

"Until  such  admission  by  their  delegates  into  Congress  any  of  the  said  States, 
after  the  establishment  of  their  temporary  government,  shall  have  authority  to  keep 
a  sitting  member  in  Congress,  with  the  right  of  debating,  but  not  of  voting." 

Attached  to  the  provision  which  appears  in  this  paper  under  the 
"  third"  head  is  a  proviso,  containing  five  propositions,  which,  when 
agreed  to  and  accepted  by  the  people  of  said  additional  States,  were 
to  "be  formed  into  a  charter  of  compact,"  and  to  remain  forever 
"  unalterable,"  except  by  the  consent  of  such  States  as  well  as  of  the 
United  States — to  wit : 

"Provided  that  both  the  temporary  and  permanent  governments  be  established  on 
these  principles  as  their  basis :" 

1st. — "That  they  shall  forever  remain  a  part  of  the  United  States  of  America." 

2d. — "That  in  their  persons,  property,  and  territory  they  shall  be  subject  to 'the 
government  of  the  United  States  in  Congress  assembled,  and  to  the  Articles  of  Con- 
federation in  all  those  cases  in  which  the  original  States  shall  be  so  subject." 

3d. — "That  they  shall  be  subject  to  pay  a  part  of  the  federal  debts  contracted,  or 
to  be  contracted — to  be  apportioned  on  them  by  Congress  according  to  the  same  com- 
mon-rule and  measure  by  which  apportionments  thereof  shall  be  made  on  the  other 
States." 

4<A. — "That  their  respective  governments  shall  be  in  republican  form,  and  shall 
admit  no  person  to  be  a  citizen  who  holds  any  hereditary  title." 

The  fifth  article,  wrhich  relates  to  the  prohibition  of  slavery  after 


18  POPTJLAE   SOVEREIGNTY   IN   THE   TEKKITORIES. 

the  year  1800,  having  been  rejected  by  Congress,  never  became  a 
part  of  the  Jeffersonian  Plan  of  Government  for  the  Tei'ritories,  as 
adopted  April  23, 1784. 

The  concluding  paragraph  of  this  Plan  of  Government,  which  em- 
phatically ignores  the  right  of  Congress  to  bind  the  people  of  the 
Territories  without  their  consent,  and  recognizes  the  people  therein 
as  the  true  source  of  all  legitimate  power  in  respect  to  their  internal 
polity,  is  in  these  words : 

"  That  all  the  preceding  articles  shall  be  formed  into  a  charter  of  compact,  shall  be 
duly  executed  by  the  President  of  the  United  States,  in  Congress  assembled,  under 
his  hand  and  the  seal  of  the  United  States,  shall  be  promulgated,  and  shall  stand  as 
fundamental  conditions  between  the  thirteen  original  States  and  those  newly  de- 
scribed, unalterable  but  by  the  joint  consent  of  the  United  States  in  Congress  assem- 
bled, and  of  the  particular  State  within  which  such  alteration  is  proposed  to  be  made." 

This  Jeffersonian  Plan  of  Government-  embodies  and  carries  out 
the  ideas  and  principles  of  the  fathers  of  the  Revolution — that  the 
people  of  every  separate  political  community  (dependent  colonies, 
Provinces,  and  Territories  as  well  as  sovereign  States)  have  an  inal- 
ienable right  to  govern  themselves  in  respect  to  their  internal  polity, 
and  repudiates  the  dogma  of  the  British  Ministry  and  the  Tories  of 
that  day  that  all  colonies,  Provinces,  and  Territories  were  the  prop- 
erty of  the  Empire,  acquired  with  the  common  blood  and  common 
treasure,  and  that  the  inhabitants  thereof  have  no  rights,  privileges, 
or  immunities  except  such  as  the  Imperial  government  should  gra- 
ciously condescend  to  bestow  iipon  them.  This  Plan  recognizes  by 
law  and  irrevocable  "  compact"  the  existence  of  two  distinct  classes 
of  States  under  our  American  system  of  government — the  one  being 
members  of  the  Union,  and  consisting  of  the  original  thirteen  and 
such  other  States,  having  the  requisite  population,  as  Congress  should 
admit  into  the  Federal  Union,  with  an  equal  vote  in  the  management 
of  Federal  affairs  as  well  as  the  exclusive  power  in  regard  to  their 
internal  polity  respectively — the  other,  not  having  the  requisite  pop- 
ulation for  admission  into  the  Union,  could  have  no  vote  or  agency 
in  the  control  of  the  Federal  relations,  but  possessed  the  same  ex- 
clusive power  over  their  domestic  affairs  and  internal  policy  respect- 
ively as  the  original  States,  with  the  right,  while  they  have  less  than 
twenty  thousand  inhabitants,  to  choose  for  their  government  the 
Constitution  and  laws  of  any  one  of  the  original  States ;  and  when 
they  should  have  more  than  twenty  thousand,  but  less  than  the  num- 
ber required  to  entitle  them  to  admission  into  the  Union,  they  were 
authorized  to  form  for  themselves  "a  permanent  Constitution  and 
government ;"  and  in  either  case  they  were  entitled  to  keep  a  dele- 
gate in  Congress  with  the  right  of  debating,  but  not  of  voting.  This 
"  Charter  of  Compact,"  with  its  "  fundamental  conditions,"  which 


POPULAR   SOVEKEIGISTTT   IN  THE   TEKEITOEIES.  19 

were  declared  to  be  "  unalterable"  without  "  the  joint  consent"  of  the 
people  interested  in  them,  as  well  as  of  the  United  States,  thus  stood 
on  the  statute  book  unrepealed  and  irrepealable — furnishing  a  com- 
plete system  of  government  for  all  "the  territory  ceded  or  to  be 
ceded"  to  the  United  States,  without  any  other  legislation  upon  the 
subject,  when,  on  the  14th  day  of  May,  1787,  the  Federal  Convention 
assembled  in  Philadelphia  and  proceeded  to  form  the  Constitution 
under  which  we  now  live.  Thus  it  will  be  seen  that  the  dividing 
lino,  between  Federal  and  Local  authority,  in  respect  to  the  rights  of 
those  political  communities  which,  for  the  sake  of  convenience  and  in 
contradistinction  to  the  States  represented  in  Congress,  we  now  call 
Territories,  but  which  were  then  known  as  "  States"  or  "new  States" 
was  so  distinctly  marked  at  that  day^that  no  intelligent  man  could 
fail  to  perceive  it. 

It  is  true  that  the  government  of  the  Confederation  had  proved 
totally  inadequate  to  the  fulfillment  of  the  ends  for  which  it  was  de- 
vised ;  not  because  of  the  relations  between  the  Territories,  or  new 
States,  and  the  United  States,  but  in  consequence  of  having  no  power 
to  enforce  its  decrees  on  the  Federal  questions  which  were  clearly 
within  the  scope  of  its  expressly  delegated  powers.  The  radical  de- 
fects in  the  Articles  of  Confederation  were  found  to  consist  in  the 
fact  that  it  was  a  mere  league  between  sovereign  States,  and  not  a 
Federal  Government  with  its  appropriate  departments — Executive, 
Legislative,  and  Judicial — each  clothed  with  authority  to  perform 
and  carry  into  effect  its  own  peculiar  functions.  The  Confederation 
having  no  power  to  enforce  compliance  with  its  resolves,  "  the  conse- 
quence was,  that  though  in  theory  the  Resolutions  of  Congress  were 
equivalent  to  laws,  yet  in  practice  they  were  found  to  be  mere  recom- 
mendations, which  the  States,  like  other  sovereignties,  observed  or 
disregarded  according  to  their  own  good- will  and  gracious  pleasure." 
Congress  could  not  impose  duties,  collect  taxes,  raise  armies,  or  do 
any  other  act  essential  to  the  existence  of  government,  without  the 
voluntary  consent  and  co-operation  of  each  of  the  States.  Congress 
could  resolve,  but  could  not  carry  its  resolutions  into  effect — could 
recommend  to  the  States  to  provide  a  revenue  for  the  necessities  of 
the  Federal  Government,  but  could  not  use  the  means  necessary  to 
the  collection  of  the  revenue  when  the  States  failed  to  comply — could 
recommend  to  the  States  to  provide  an  army  for  the  general  defense, 
and  apportion  among  the  States  their  respective  quotas,  but*  could 
not  enlist  the  men  and  order  them  into  the  Federal  service.  For 
these  reasons  a  Federal  Government,  with  its  appropriate  depart- 
ments, acting  directly  upon  the  individual  citizens,  with  authority  to 
enforce  its  decrees  to  the  extent  of  its  delegated  powers,  and  not  de- 
pendent upon  the  voluntary  action  of  the  several  States  in  their  cor- 


20  POPULAR   SOVEREIGNTY  IN  THE  TERRITORIES. 

porate  capacity,  became  indispensable  as  a  substitute  for  the  govern- 
ment of  the  Confederation. 

In  the  formation  of  the  Constitution  of  the  United  States  the  Federal 
Convention  took  the  British  Constitution,  as  interpreted  and  ex- 
pounded by  the  Colonies  during  their  controversy  with  Great  Britain, 
for  their  model — making  such  modifications  in  its  structure  and  prin- 
ciples as  the  change  in  our  condition  had  rendered  necessary.  They 
intrusted  the  Executive  functions  to  a  President  in  the  place  of  a 
King ;  the  Legislative  functions  to  a  Congress  composed  of  a  Senate 
and  House  of  Representatives,  in  lieu  of  the  Parliament  consisting  of 
the  Houses  of  Lords  and  Commons  ;  and  the  Judicial  functions  to  a 
Supreme  Court  and  such  inferior  Courts  as  Congress  should  from 
time  to  time  ordain  and  establish. 

Having  thus  divided  the  powers  of  government  into  the  three 
appropriate  departments,  with  which  they  had  always  been  familiar, 
they  proceeded  to  confer  upon  the  Federal  Government  substantially 
the  same  powers  which  they  as  colonies  had  been  willing  to  "concede 
to  the  British  Government,  and  to  reserve  to  the  States  and  to  the 
people  the  same  rights  and  privileges  which  they  as  colonies  had 
denied  to  the  British  Government  during  the  entire  struggle  which 
terminated  in  our  Independence,  and  which  they  had  claimed  for 
themselves  and  their  posterity  as  the  birth-right  of  all  freemen, 
inalienable  when  organized  into  political  communities,  and  to  be 
enjoyed  and  exercised  by  Colonies,  Territories,  and  Provinces  as 
fully  and  completely  as  by  sovereign  States.  Thus  it  will  be  seen 
that  there  is  no  organic  feature  or  fundamental  principle  embodied  in 
the  Constitution  of  the  United  States  which  had  not  been  familiar  to 
the  people  of  the  Colonies  from  the  period  of  their  earliest  settle- 
ment, and  which  had  not  been  repeatedly  asserted  by  them  when 
denied  by  Great  Britain  during  the  whole  period  of  their  colonial 
history. 

Let  us  pause  at  this  point  for  a  moment,  and  inquire  whether  it  be 
just  to  those  illustrious  patriots  and  sages  who  formed  the  Constitu- 
tion of  the  United  States,  to  assume  that  they  intended  to  confer 
upon  Congress  that  unlimited  and  arbitrary  power  over  the  people 
of  the  American  Territories,  which  they  had  resisted  with  their  blood 
when  claimed  by  the  British  Parliament  over  British  colonies  in 
America?  Did  they  confer  upon  Congress  the  right  to  bind  the 
people  of  the  American  Territories  in  all  cases  whatsoever,  after 
having  fought  the  battles  of  the  Revolution  against  a  "  Preamble" 
declaring  the  right  of  Parliament  "  to  bind  the- Colonies  in  all  cases 
whatsoever?" 

If,  as  they  contended  before  the  Revolution,  it  was  the  birth-right 
of  all  Englishmen,  inalienable  when  formed  into  political  communi- 


POPULA.E  SOYEREKOTY  IK  THE  TEEEITOEIES.  21 

ties,  to  exercise  exclusive  power  of  legislation  in  their  local  legisla- 
tures in.  respect  to  all  things  affecting  their  internal  polity — slavery 
not  excepted — did  not  the  same  right,  after  the  Revolution,  and  by 
virtue  of  it,  become  the  birth-right  of  all  Americans,  in  like  manner 
inalienable  when  organized  into  political  communities — no  matter  by 
what  name,  whether  Colonies,  Territories,  Provinces,  or  new  States  ? 
Names  often  deceive  persons  in  respect  to  the  nature  and  sub- 
stance of  things.  A  signal  instance  of  this  kind  is  to  be  found  in  that 
clause  of  the  Constitution  which  says : 


c 


Congress  shall  have  power  to  dispose  of,  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  or  other  property  belonging  to  the  United  States." 

This  being  the  only  clause  of  the  Constitution  in  which  the  word 
"  territory"  appears,  that  fact  alone  has  doubtless  led  many  persons 
to  suppose  that  the  right  of  Congress  to  establish  temporary  gov- 
ernments for  the  Territories,  in  the  sense  in  which  the  word  is  now 
used,  must  be  derived  from  it,  overlooking  the  important  and  con- 
trolling facts  that  at  the  time  the  Constitution  was  formed  the  word 
"  territory"  had  never  been  used  or  understood  to  designate  a  politic- 
al  cpmniunitv  or  government  of  any  "kind  in  any  law,  compact,  deed 

cession,  or  public  document ;  but  had  invariably  been  used  either 
in  its  geographical  sense  to  describe  the  superficial  area  of  a  State  or 
district  of  country,  as  in  the  Virginia  deed  of  cession  of  the  "territory 
or  tract  of  country"  northwest  of  the  River  Ohio ;  or  as  meaning 
land  in  its  character  as  property,  in  which  latter  sense  it  appears  in 
the  clause  of  the  Constitution  referred  to,  when  providing  for  the 
disposition  of  the  "territory  or  other  property  belonging  to  the 
United  States."  These  facts,  taken  in  connection  with  the  kindred 
one  that  during  the  whole  period  of  the  Confederation  and  the  forma- 
ion  of  the  Constitution  the  temporary  governments  which  we  now 
call  "  Territories,"  were  invariably  referred  to  in  the  deeds  of  cession, 
laws,  compacts,  plans  of  government,  resolutions  of  Congress,  public 
records,  and  authentic  documents  as  "  States,"  or  "  new  States,"  con- 
clusively show  that  the  words  "  territory  and  other  property"  in  the 
Constitution  were  used  to  designate  the  unappropriated  lands  and 
other  property  which  the  United  States  owned,  and  not  the  people 
who  might  become  residents  on  those  lands,  and  be  organized  into  po- 
litical communities  after  the  United  States  had  parted  with  their  title. 

It  is  from  this  clause  of  the  Constitution  alone  that  Congress  de- 
rives the  power  to  provide  for  the  surveys  and  sale  of  the  public 
lands  and  all  other  property  belonging  to  the  United  States,  not  only 
in  the  Territories,  but  also  in  the  several  States  of  the  Union.  But 
for  this  provision  Congress  would  have  no  power  to  authorize  the 
sale  of  the  public  lands,  military  sites,  old  ships,  cannon,  muskets,  or 


22          POPULAR  SOVEREIGNTY  IX  THE  TERRITORIES. 

other  property,  real  or  personal,  which  belong  to  the  United  States 
and  are  no  longer  needed  for  any  public  purpose.  It  refers  exclu- 
sively to  property  in  contradistinction  .to  persons  and  communities. 
It  confers  the  same  power  "to  make  all  needful  rules  and  regula- 
tions" in  the  States  as  in  the  Territories,  and  extends  wherever  there 
may  be  any  land  or  other  property  belonging  to  the  United  States  to 
be  regulated  or  disposed  of;  but  does  not  authorize  Congress  to 
control  or  interfere  with  the  domestic  institutions  and  internal  polity 
of  the  people  (either  in  the  States  or  the  Territories)  who  may  reside 
upon  lands  which  the  United  States  once  owned.  Such  a  power,  had 
it  been  vested  in  Congress,  would  annihilate  the  sovereignty  and 
freedom  of  the  States  as  well  as  the  great  principle  of  self-government 
in  the  Territories,  wherever  the  United  States  happen  to  own  a  por- 
tion of  the  public  lands  within  their  respective  limits,  as,  at  present, 
in  the  States  of  Alabama,  Florida,  Mississippi,  Louisiana,  Arkansas, 
Missouri,  Illinois,  Indiana,  Ohio,  Michigan,  "Wisconsin,  Iowa,  Minne- 
sota, California,  and  Oregon,  and  in  the  Territories  of  Washington, 
Nebraska,  Kansas,  Utah,  and  New  Mexico.  The  idea  is  repugnant 
to  the  spirit  and  genius  of  our  complex  system  of  government ;  be- 
cause it  effectually  blots  out  the  dividing  line  between  Federal  and 
Local  authority  which  forms  an  essential  barrier  for  the  defense  of 
the  independence  of  the  States  and  the  liberties  of  the  people  against 
Federal  invasion.  With  one  anomalous  exception,  all  the  powers 
conferred  on  Congress  are  Federal,  and  not  Municipal,  in  their  char- 
acter— affecting  the  general  welfare  of  the  whole  country  without 
interfering  with  the  internal  polity  of  the  people — and  can  be  carried 
into  effect  by  laws  which  apply  alike  to  States  and  Territories.  The 
exception,  being  in  derogation  of  one  of  the  fundamental  principles 
of  our  political  system  (because  it  authorizes  the  Federal  Government 
to  control  the  municipal  affairs  and  internal  polity  of  the  people  in 
certain  specified,  limited  localities),  was  not  left  to  vague  inference 
or  loose  construction,  nor  expressed  in  dubious  or  equivocal  language ; 
but  is  found  plainly  written  in  that  Section  of  the  Constitution  which 
says: 

"Congress  shall  hare  power  to  exercise  exclusive  legislation  in  all  cases  whatso- 
ever, over  such  district  (not  exceeding  ten  miles  square)  as  may,  by  cession  of  par- 
ticular States,  and  the  acceptance  of  Congress,  become  the  seat  of  the  government  of 
the  United  States,  and  to  exercise  like  authority  over  all  places  purchased  by  the 
consent  of  the  Legislature  of  the  State  in  which  the  s^me  shall  be,  for  the  erection 
of  forts,  magazines,  arsenals,  dock-yards,  and  other  needful  buildings." 

No  such  power  "  to  exercise  exclusive  legislation  in  all  cases  what- 
soever," nor  indeed  any  legislation  in  any  case  whatsoever,  is  con- 
ferred on  Congress  in  respect  to  the  municipal  affairs  and  internal 
polity,  either  of'the  States  or  of  the  Territories.  On  the  contrary, 
after  the  Constitution  had  been  finally  adopted,  with  its  Federal 


POPULAR   SOVEREIG^fTY  IN  THE  TERRITORIES.  23 

powers  delegated,  enumerated,  and  defined,  in  order  to  guard  in  all 
future  time  against  any  possible  infringement  of  the  reserved  rights 
of  the  States,  or  of  the  people,  an  amendment  was  incorporated  into 
the  Constitution  which  marks  the  dividing  line  between  Federal  and 
Local  authority  so  directly  and  indelibly  that  no  lapse  of  time,  no 
partisan  prejudice,  no  sectional  aggrandizement,  no  frenzied  fanati- 
cism can  efface  it.  The  amendment  is  hi  these  words : 

"The  powers  not  delegated  to  the  United  States  by  the  Constitution,  nor  prohib- 
ited by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the  people.," 

This  view  of  the  subject  is  confirmed,  if  indeed  any  corroborative 
evidence  is  required,  by  reference  to  the  proceedings  and  debates  of 
the  Federal  Convention,  as  reported  by  Mr.  Madison.  On  the  18th 
of  August,  after  a  series  of  resolutions  had  been  adopted  as  the  basis 
of  the  propgsed  Constitution  and  referred  to  the  Committee  of  De- 
tail for  the  purpose  of  being  put  in  proper  form,  the  record  says  : 

"Mr.  Madison  submitted,  in  order  to  be  referred  to  the  Committee  of  Detail,  the 
following  powers,  as  proper  to  be  added  to  those  of  the  general  Legislature  (Con- 
gress) : 

"To  dispose  of  the  unappropriated  lands  of  the  United  States. 

' '  To  institute  temporary  governments  for  the  new  States  arising  therein. 

"To  regulate  affairs  with  the  Indians,  as  well  within  as  without  the  limits  of  the 
United  States. 

"To  exercise  exclusively  legislative  authority  at  the  seat  of  the  general  govern- 
ment, and  over  a  district  around  the  same  not  exceeding square  miles,  the  con- 
sent of  the  Legislature  of  the  State  or  States  comprising  the  same  being  first  obtained." 

Here  we  find  the  original  and  rough  draft  of  these  several  powers 
as  they  now  exist,  in  their  revised  form,  in  the  Constitution.  The 
provision  empowering  Congress  "  to  dispose  of  the  unappropriated 
lands  of  the  United  States"  was  modified  and  enlarged  so  as  to  in- 
clude "other  property  belonging  to  the  United  States,"  and  to 
authorize  Congress  to  "  make  all  needful  rules  and  regulations"  for 
the  preservation,  management,  and  sale  of  the  same. 

The  provision  empowering  Congress  "  to  institute  temporary  gov- 
ernments for  the  new  States  arising  hi  the  unappropriated  lands  of  the 
United  States,"  taken  hi  connection  with  the  one  empowering  Con- 
gress "  to  exercise  exclusively  Legislative  authority  at  the  seat  of  the 
general  government,  and  over  a  district  of  country  around  the  same," 
clearly  shows  the  difference  in  the  extent  and  nature  of  the  powers 
intended  to  be  conferred  hi  the  new  States  or  Territories  on  the  one 
hand,  and  in  the  District  of  Columbia  on  the  other.  In  the  one  case 
it  was  proposed  to  authorize  Congress  "  to.  institute  temporary  gov- 
ernments for  the  new  States,"  or  Territories,  as  they  are  now  called, 
just  as  our  Revolutionary  fathers  recognized  the  right  of  the  British 
crown  to  institute  local  governments  for  the  Colonies,  by  issuing 
charters,  under  which' the  people  of  the  Colonies  were  "entitled 


24         POPULAR  SOVEREIGNTY  I*X  THE  TERRITORIES. 

(according  to  the  Bill  of  Rights  adopted  by  the  Continental  Con- 
gress) to  a  free  and  exclusive  power  of  legislation,  in  their  several 
Provincial  Legislatures,  where  their  right  of  representation  can  alone 
be  preserved,  in  all  cases  of  taxation  and  internal  polity ;"  while,  in 
the  other  case,  it  was  proposed  to  authorize  Congress  to  exercise, 
exclusively,  legislative  authority  over  the  municipal  and  internal 
polity  of  the  people  residing  within  the  district  which  should  be 
ceded  for  that  purpose  as  the  seat  of  the  general  government. 

Each  of  these  provisions  was  modified  and  perfected  by  the  Com- 
mittees of  Detail  and  Revision,  as  will  appear  by  comparing  them 
with  the  corresponding  clauses  as  finally  incorporated  into  the  Con- 
stitution. The  provision  to  authorize  Congress  to  institute  temporary 
governments  for  the  new  States  or  Territories,  and  to  provide  for 
their  admission  into  the  Union,  appears  in  the  Constitution  hi  this 
form : 

"New  States  may  be  admitted  by  the  Congress  into  this  Union." 

The  power  to  admit  " new  States"  and  " to  make  all  laws  which 
shall  be  necessary  and  proper"  to  that  end,  may  fairly  be  construed 
to  include  the  right  to  institute  temporary  governments  for  such  new 
States  or  Territories,  the  same  as  Great  Britain  could  rightfully 
institute  similar  governments  for  the  Colonies ;  but  certainly  not  to 
authorize  Congress  to  legislate  in  respect  to  their  municipal  affairs 
and  internal  concerns,  without  violating  that  great  fundamental 
principle  in  defense  of  which  the  battles  of  the  Revolution  were 
fought. 

If  judicial  authority  wTere  deemed  necessary  to  give  force  to  prin- 
ciples so  eminently  just  in  themselves,  and  which  form  the  basis  of 
our  entire  political  system,  such  authority  may  be  found  in  the  opin- 
ion of  the  Supreme  Court  of  the  United  States,  in  the  Dred  Scott 
case.  In  that  case  the  Court  say : 

"This  brings  us  to  examine  by  what  provision  of  the  Constitution  the  present  Fed- 
eral Government,  under  its  delegated  and  restricted  powers,  is  authorized  to  acquire 
territory  outside  of  the  original  limits  of  the  United  States,  and  what  powers  it  may 
exercise  therein  over  the  person  or  property  of  a  citizen  of  the  United  States,  while 
it  remains  a  Territory,  and  until  it  shall  be  admitted  as  one  of  the  States  of  the 
Union. 

"There  is  certainly  no  power  given  by  the  Constitution  to  the  Federal  Govern- 
ment to  establish  or  maintain  colonies,  bordering  on  the  United  States  or  at  a  dis- 
tance, to  be  ruled  and  governed  at  its  own  pleasure ;  nor  to  enlarge  its  territorial 
limits  in  any  way  except  by  the  admission  of  new  States  .  .  . 

' '  The  power  to  expand  the  territory  of  the  United  States  by  the  admission  of  new 
States  is  plainly  given ;  and  in  the  construction  of  this  power  by  all  the  departments 
of  the  Government,  it  lias  been  held  to  authorize  the  acquisition  of  territory,  not  fit 
for  admission  at  the  time,  but  to  be  admitted  as  soon  as  its  population  and  situation 
would  entitle  it  to  admission.  It  is  acquired  to  become  a  State,  and  not  to  be  held 
as  a  colony  and  governed  by  Congress  with  absolute  authority :  and  as  the  propriety 


POPULAR   SOVEREIGNTY   IX  THE  TERRITORIES.  25 

of  admitting  a  new  State  is  committed  to  the  sound  discretion  of  Congress,  the  power 
to  acquire  territory  for  that  purpose,  to  be  held  by  the  United  States  until  it  is  in  a 
suitable  condition  to  become  a  State  upon  an  equal  footing  with  the  other  States, 
must  rest  upon  the  same  discretion." 

Having  determined  the  question  that  the  power  to  acquire  terri- 
tory for  the  purpose  of  enlarging  our  territorial  limits  and  increasing 
the  number  of  States  is  included  within  the  power  to  admit  new 
States  and  conferred  by  the  same  clause  of  the  Constitution,  the 
Court  proceed  to  say  that  "  the  power  to  acquire  necessarily  carries 
with  it  the  power  to  preserve  and  apply  to  the  purposes  for  which  it 
was  acquired."  And  again,  referring  to  a  former  decision  of  the 
same  Court  in  respect  to  the  power  of  Congress  to  institute  govern- 
ments for  the  Territories,  the  Court  say : 

"The  power  stands  firmly  on  the  latter  alternative  put  by  the  Court— that  is,  as 
'the  inevitable  consequence  of  the  right  to  acquire  territory.' " 

The  power  to  acquire  territory,  as  well  as  the  right,  in  the  language 
of  Mr.  Madison,  "  to  institute  temporary  governments  for  the  new 
States  arising  therein"  (or  Territorial  governments,  as  they  are  now 
called),  having  been  traced  to  that  provision  of  the  Constitution 
which  provides  for  the  admission  of  "  new  States,"  the  Court  proceed 
to  consider  the  nature  and  extent  of  the  power  of  Congress  over  the 
people  of  the  Territories : 

"  All  we  mean  to  say  on  this  point  is,  that,  as  there  is  no  express  regulation  in  the 
Constitution  defining  the  power  which  the  general  government  may  exercise  OA'er 
the  person  or  property  of  a  citizen  in  a  Territory  thus  acquired,  the  Court  must  nec- 
essarily look  to  the  provisions  and  principles  of  the  Constitution,  and  its  distribution 
of  powers,  for  the  rules  and  principles  by  which  its  decision  must  be  governed. 

"  Taking  tins  rule  to  guide  us,  it  may  be  safely  assumed  that  citizens  of  the  United 
States,  who  emigrate  to  a  Territory  belonging  to  the  people  of  the  United'  States,  can 
not  be  ruled  as  mere  colonists,  dependent  upon  the  will  of  the  general  government, 
and  to  be  governed  by  any  laws  it  may  think  proper  to  impose  .  .  .  The  Territory 
being  a  part  of  the  United  States,  the  Government  and  the  citizen  both  enter  it  un- 
der the  authority  of  the  Constitution,  with  their  respective  rights  defined  and  marked 
out ;  and  the  Federal  Government  can  exercise  no  power  over  his  person  or  property 
beyond  .what  that  instrument  confers,  nor  lawfully  deny  any  right  which  it  has  re- 
served." 

Hence,  inasmuch  as  the  Constitution  has  conferred  on  the  Federal 
Government  no  right  to  interfere  with  the  property,  domestic  rela- 
tions, police  regulations,  or  internal  polity  of  the  people  of  the  Terri- 
tories, it  necessarily  follows,  under  the  authority  of  the  Court,  that 
Congress  can  rightfully  exercise  no  such  power  over  the  people  of 
the  Territories.  For  this  reason  alone,  the  Supreme  Court  were 
authorized  and  compelled  to  pronounce  the  eighth  section  of  the  Act 
approved  March  6, 1820  (commonly  called  the  Missouri  Compromise), 
inoperative,  and  void — there  being  no  power  delegated  to  Congress 


I 


26         POPULAR  SOVEREIGNTY  IN  TUB  TERRITORIES. 

in  the  Constitution  authorizing  Congress  to  prohibit  slavery  in  the 
Territories. 

In  the  course  of  the  discussion  of  this  question  the  Court  gave  an 
elaborate  exposition  of  the  structure,  principles,  and  powers  of  the 
Federal  Government;  showing  that  it  possesses  no  powers  except 
those  which  are  delegated,  enumerated,  and  defined  in  the  Constitu- 
tion ;  and  that  all  other  powers  are  either  prohibited  altogether  or 
are  reserved  to  the  States,  or  to  the  people.  In  order  to  show  that 
the  prohibited,  as  well  as  the  delegated  powers  are  enumerated  and 
defined  in  the  Constitution,  the  Court  enumerated  certain  powers 
which  can  not  be  exercised  either  by  Congress  or  by  the  Territorial 
Legislatures,  or  by  any  other  authority  whatever,  for  the  simple 
reason  that  they  are  forbidden  by  the  Constitution. 

Some  persons  who  have  not  examined  Critically  the  opinion  of  the 
.  Court  in  this  respect  have  been  induced  to  believe  that  the  slavery 
question  was  included  in  this  class  of  prohibited  powers,  and  that 
the  Court  had  decided  in  the  Dred  Scott  case  that  the  Territorial 
Legislature  could  not  legislate  in  respect  to  slave  property  the  same 
as  all  other  property  hi  the  Territories.  A  few  extracts  from  the 
opinion  of  the  Court  will  correct  this  error,  and  show  clearly  the 
class  of  powers  to  which  the  Court  referred,  as  being  forbidden  alike 
to  the  Federal  Government,  to  the  States,  and  to  the  Territories. 
The  Court  say : 

"  A  reference  to  a  few  of  the  provisions  of  the  Constitution  will  illustrate  this  prop, 
osition.  For  example,  no  one,  we  presume,  will  contend  that  Congress  can  make 
any  law  in  a  Territory  respecting  the  establishment  of  religion,  or  the  free  exercise 
thereof,  or  abridging  the  freedom  of  speech  or  of  the  press,  or  the  right  of  the  people 
of  the  Territory  peaceably  to  assemble,  and  to  petition  the  Government  for  the  re- 
dress of  grievances. 

"  Nor  can  Congress  deny  to  the  people  the  right  to  keep  and  bear  arms,  nor  the 
right  to  trial  by  jury,  nor  compel  any  one  to  be  a  witness  against  himself  in  a  crim- 
inal proceeding  ...  So  too,  it  will  hardly  be  contended  that  Congress  could  by  law 
quarter  a  soldier  in  a  house  in  a  Territory  without  the  consent  of  the  owner  in  a 
time  of  peace ;  nor  in  time  of  war  but  in  a  manner  prescribed  by  law.  Nor  could 
they  by  law  forfeit  the  property  of  a  citizen  in  a  Territory  who  was  convicted  of  trea- 
son, for  a  longer,  period  than  the  life  of  the  person  convicted,  nor  take  private  prop- 
erty  for  public  use  without  just  compensation. 

"  The  powers  over  persons  and  property,  of  which  we  speak,  are  not  only  not  grant- 
ed to  Congress,  but  are  in  express  terms  denied,  and  they  are  forbidden  to  exercise 
them.  And  this  prohibition  is  not  confined  to  the  States,  but  the  words  are  general, 
and  extend  to  the  whole  territory  over  which  the  Constitution  gives  it  power  to  legis- 
late, including  those  portions  of  it  remaining  under  Territorial  governments,  as  well 
as  that  covered  by  States. 

"It  is  a  total  absence  of  power,  every  where  within  the  dominion  of  the  United 
States,  and  places  the  citizens  of  a  Territory,  so  far  as  these  rights  are  concerned,  on 
the  same  footing  with  citizens  of  the  States,  and  guards  them  as  firmly  and  plainly 
against  any  inroads  which  the  general  'government  might  attempt,  under  the  plea  of 
implied  or  incidental  powers.  And  if  Congress  itself  can  not  do  this — if  it  is  beyond 


POPULAR   SOVEREIGNTY   IN   THE  TERRITORIES.  27 

the  powers  conferred  on  the  Federal  Government — it  will  be  admitted,  we  presume, 
that  it  coold  not  authorize  a  Territorial  government  to  exercise  them.  It  could  con- 
fer no  power  on  any  local  government,  established  by  its  authority,  to  violate  the  pro- 
visions of  the  Constitution." 

ISTothing  can  be  more  certain  than  that  the  Court  were  here  speak- 
ing only  of  forbidden  powers,  which  were  denied  alike  to  Congress, 
to*  the  State  Legislatures,  and  to  the  Territorial  Legislatures,  and 
that  the  prohibition  extends  "  every  where  within  the  dominion  of 
the  United  States,"  applicable  equally  to  States  and  Territories,  as 
well  as  to  the  United  States. 

If  this  sweeping  prohibition — this  just  but  inexorable  restriction 
upon  the  powers  of  Government — Federal,  State,  and  Territorial — 
shall  ever  be  held  to  include  the  slavery  question,  thus  negativing 
the  right  of  the  people  of  the  States  and  Territories,  as  well  as  the 
Federal  Government,  to  control  it  by  law  (and  it  will  be  observed 
that  in  the  opinion  of  the  Court  "  the  citizens  of  a  Territory,  so  far 
as  these  rights  are  concerned,  are  on  the  same  footing  with  the  citi- 
zens of  the  States"),  then,  indeed,  will  the  doctrine  become  firmly 
established  that  the  principles  of  law  applicable  to  African  slavery 
are  uniform  throughout  the  dominion  of  the  United  States,  and  that 
there  "is  an  irrepressible  conflict  between  opposing  and  enduring 
forces,  which  means  that  the  United  States  must  and  will,  sooner  or 
later,  become  either  entirely  a  slaveholding  nation  or  entirely  a  free- 
labor  nation." 

Notwithstanding  the  disastrous  consequences  which  would  inevi- 
tably result  from  the  authoritative  recognition  and  practical  opera- 
tion of  such  a  doctrine,  there  are  those  who  maintain  that  the*  Court 
referred  to  and  included  the  slavery  question  within  that  class  of 
forbidden,  powers  which  (although  the  same  in  the  Territories  as  in 
the  States)  could  not  be  exercised  by  the  people  of  the  Territories. 

If  this  proposition  were  true,  which  fortunately  for  the  peace  and 
welfare  of  the  whole  country  it  is  not,  the  conclusion  would  inevita- 
"bly  result,  which  they  logically  deduce  from  the  premises — that  the 
Constitution  by  the  recognition  of  slavery  establishes  it  in  the  Terri- 
tories beyond  the  power  of  the  people  to  control  it  by  law,  and  guar- 
antees to  every  citizen  the  right  to  go  there  and  be  protected  in  the 
enjoyment  of  his  slave  property ;  and  when-  ah"  other  remedies  fail 
for  the  protection  of  such  rights  of  property,  it  becomes  the  impera- 
tive duty  of  Congress  (to  the  performance  of  which  every  member  is 
bound  by  his  conscience  and  his  oath,  and  from  which  no  considera- 
tion of  political  policy  or  expediency  can  release  him)  to  provide  by 
law  such  adequate  and  complete  protection  as  is  essential  to  the  full 
enjoyment  of  an  important  right  secured  by  the  Constitution.  If  the 
proposition  be  true,  that  the  Constitution  establishes  slavery  in  the 


28  POPULAR  SOVEREIGNTY  IN  THE  TERRITORIES. 

Territories  beyond  the  power  of  the  people  legally  to  control  it, 
another  result,  no  less  startling,  and  from  which  there  is  no  escape, 
must  inevitably  follow.  The  Constitution  is  uniform  "  every  where 
within  the  dominions  of  the  United  States" — is  the  same  in  Pennsyl- 
vania as  in  Kansas — and  if  it  be  true,  as  stated  by  the  President  in  a 
special  Message  to  Congress,  "  that  slavery  exists  in  Kansas  by  vir- 
tue of  the  Constitution  of  the  United  States,"  and  that  "  Kansas  is 
therefore  at  this  moment  as  much  a  slave  State  as  Georgia  or  South 
Carolina,"  why  does  it  not  exist  in  Pennsylvania  by  virtue  of  the 
same  Constitution  ?  . 

If  it  be  said  that  Pennsylvania  is  a  Sovereign  State,  and  therefore 
has  a  right  to  regulate  the  slavery  question  within  her  own  limits  to 
suit  herself,  it  must  be  borne  in  mind  that  the  sovereignty  of  Pennsyl- 
vania, like  that  of  every  other  State,  is  limited  by  the  Constitution, 
which  provides  that : 

"This  Constitution,  and  all  laws  of  the  United  States  which  shall  be  made  in  pur- 
suance thereof,  and  all  treaties  made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every  State 
shall  be  bound  thereby,  any  thing  in  the  Constitution  or  laics  of  any  State  to  the  con- 
trary notwithstanding." 

Hence,  the  State  of  Pennsylvania,  with  her  Constitution  and  laws, 
and  domestic  institutions,  and  internal  policy,  is  subordinate  to  the 
Constitution  of  the  United  States,  in  the  same  manner,  and  to  the 
same  extent,  as  the  Territory  of  Kansas.  The  Kansas-Nebraska  Act 
says  that  the  -Territory  of  Kansas  shall  exercise  legislative  power 
over  "  all  rightful  subjects  of  legislation  consistent  with  the  Constitu- 
tion," and  that  the  people  of  said  Territory  shall  be  left  "perfectly 
free  to  form  and  regulate  their  domestic  institutions  in  their  own 
way,  subject  only  to  the  Constitution  of  the  United  States."  The 
provisions  of  this  Act  are  believed  to  be  in  entire  harmony  with  the 
Constitution,  and  under  them  the  people  of  Kansas  possess  every 
right,  privilege,  and  immunity,  in  respect  to  their  internal  polity  and 
domestic  relations  which  the  people  of  Pennsylvania  can  exercise 
under  their  Constitution  and  faws.  Each  is  invested  with  full,  com- 
plete, and  exclusive  powers  in  this  respect,  "  subject  only  to  the  Con- 
stitution of  the  United  States." 

The  question  recurs  then,  if  the  Constitution  does  establish  slavery 
in  Kansas  or  any  other  Territory  beyond  the  power  of  the  people  to 
cpntrol  it  by  law,  how  can  the  conclusion  be  resisted  that  slavery  is 
established  in  like  manner  and  by  the  same  authority  in  all  the  States 
of  the  Union  ?  And  if  it  be  the  imperative  duty  of  Congress  to  pro- 
vide by  law  for  the  protection  of  slave  property  In  the  Territories 
upon  the  ground  that  "  slavery  exists  in  Kansas"  (and  consequently 
in  every  other  Territory),  "  by  virtue  of  the  Constitution  of  the  United 


POPULAR   SOVEREIGNTY   IX   THE  TERRITORIES.  29 

States,"  why  is  it  not  also  the  duty  of  Congress,  for  the  same  reason, 
to  provide  similar  protection  to  slave  property  in  all  the  States  of  the 
Union,  when  the  Legislatures  fail  to  furnish  such  protection? 

Without  confessing  or  attempting  to  avoid  the  inevitable  conse- 
quences of  their  own  doctrine,  its  advocates  endeavor  to  fortify  their 
position  by  citing  the  Dred  Scott  decision  to  prove  that  the  Constitu- 
tion recognizes  property  in  slaves — that  there  is  no  legal  distinction 
between  this  and  every  other  description  of  property — that  slave 
property  and  every  other  kind  of  property  stand  on  an  equal  foot- 
ing— that  Congress  has  no  more  power  over  the  one  than  over  the 
other — and,  consequently,  can  not  discriminate  between  them. 

Upon  this  point  the  Court  say : 

"Now  as  we  have  already  said  in  an  earlier  part  of  this  opinion,  upon  a  different 
point,  the  right  of  property  in  a  slave  is  distinctly  and  expressly  affirmed  in  the  Con- 
stitution ....  And  if  the  Constitution  recognizes  the  right  of  property  of  the  master 
in  a  slave,  and  makes  no  distinction  between  that  description  of  property  and  other 
property  owned  by  a  citizen,  no  tribunal  acting  under  the  authority  of  the  United 
States,  whether  it  be  legislative,  executive,  or  judicial,  has  a  right  to  draw  such  a 
distinction,  or  deny  to  it  the  benefit  of  the  provisions  and  guarantees  which -have 
been  provided  for  the  protection  of  private  property  against  the  encroachments  of  the 
government  ....  And  the  government  in  express  terms  is  pledged  to  protect  it  in 
all  future  time,  if  the  slave  escapes  from  his  owner.  This  is  done  in  plain  words — too 
plain  to  be  misunderstood.  And  no  word  can  be  found  in  the  Constitution  which 
gives  Congress  a  greater  power  over  slave  property,  or  which  entitles  property  of  that 
kind  to  less  protection  than  property  of  any  other  description.  The  only  power  con- 
ferred is  the  power  coupled  with  the  duty  of  guarding  and  protecting  the  owner  in 
his  rights." 

The  rights  of  the  owner  which  it  is  thus  made  the  duty  of  the  Fed- 
eral Government  to  guard  and  protect  are  those  expressly  provided 
for  in  the  Constitution,  and  defined  in  clear  and  explicit  language  by 
the  Court — that  "the  government,  in  express  terms,  is  pledged  to 
protect  it  (slave  property)  in  all  future  tune,  if  the  slave  escapes  from 
his  otcner"  This  is  the  only  contingency,  according  to  the  plain 
reading  of  the  Constitution  as  authoritatively  interpreted  by  the 
Supreme  Court,  in  which  the  Federal  Government  is  authorized,  re- 
quired, or  permitted  to  interfere  with  slavery  in  the  States  or  Terri- 
tories ;  and  in  that  case  only  for  the  purpose  "  of  guarding  and  pro- 
tecting the  owner  in  his  rights"  to  reclaim  his  slave  property.  In  all 
other  respects  slaves  stand  on  the  same  footing  with  all  other  prop- 
erty— "  the  Constitution  makes  no  distinction  between  that  descrip- 
tion of  property  and  other  property  owned  by  a  citizen ;"  and  "  no 
word  can  be  found  in  the  Constitution  which  gives  Congress  a 
greater  power  over  slave  property,  or  which  entitles  property  of  that 
kind  to  less  protection  than  property  of  any  other  description."  This 
is  the  basis  upon  which  all  rights  pertaining  to  slave  property,  either 


30  POPULAR   SOVEREIGNTY   IN   THE   TERRITORIES. 

in  the  States  or  the  Territories,  stand  under  the  Constitution  as  ex- 
pounded by  the  Supreme  Court  in  the  Dred  Scott  case. 

Inasmuch  as  the  Constitution  has  delegated  no  power  to  the  Fed- 
eral Government  in  respect  to  any  other  kind  of  property  belonging 
to  the  citizen — neither  introducing,  establishing,  prohibiting,  nor  ex- 
cluding it  any  where  within  the  dominion  of  the  United  States,  but 
leaves  the  owner  thereof  perfectly  free  to  remove  into  any  State  or 
Territory  and  carry  his  property  with  him,  and  hold  the  same  sub- 
ject to  the  local  law,  and  relying  upon  the  local  authorities  for  pro- 
tection, it  follows,  according  to  the  decision  of  the  Court,  that  slave 
property  stands  on  the  same  footing,  is  entitled  to  the  same  rights 
and  immunities,  and  in  like  manner  is  dependent  upon  the  local  au- 
thorities and  laws  for  protection. 

The  Court  refer  to  that  clause  of  the  Constitution  which  provides 
for  the  rendition  of  fugitive  slaves  as  their  authority  for  saying  that 
"  the  right  of  property  in  slaves  is  distinctly  and  expressly  affirmed 
in  the  Constitution."  By  reference  to  that  provision  it  will  be  seen 
that,  while  the  word  "  slaves"  is  not  used,  still  the  Constitution  not 
only  recognizes  the  right  of  property  in  slaves,  as  stated  by  the 
Court,  but  explicitly  states  what  class  of  persons  shall  be  deemed 
slaves,  and  under  what  laws  or  authority  they  may  be  held  to  servi- 
tude, and  under  what  circumstances  fugitive  slaves  shall  be  restored 
to  their  owners,  all  in  the  same  section,  as  follows : 

"No  person  held  to  service  or  labor  in  one  State,  under  the  laws  thereof,  escaping 
into  another,  shall,  in  consequence  of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor,  but  shall  be  delivered  up  on  claim  of  the  party  to  whom 
such  service  or  labor  may  be  due." 

Thus  it  will  be  seen  that  a  slave,  within  the  meaning  of  the  Con- 
stitution, is  a  "  person  held  to  service  or  labor  in  one  State;  under  the 
laws  thereof" — not  under  the  Constitution  of  the  United  States,  nor 
by  the  laws  thereof,  nor  by  virtue  of  any  Federal  authority  whatso- 
ever, but  under  the  laws  of  the  particular  State  where  such  service 
or  labor  may  be  due. 

It  was  necessary  to  give  this  exact  definition  of  slavery  in  the  Con- 
stitution in  order  to  satisfy  the  people  of  the  South  as  well  as  of  the 
North.  The  slaveholding  States  would  never  consent  for  a  moment 
that  their  domestic  relations- — and  especially  their  right  of  property 
in  their  slaves — should  be  dependent  upon  Federal  authority,  or  that 
Congress  should  have  any  power  over  the  subject — either  to  extend, 
confine,  or  restrain  it ;  much  less  to  protect  or  regulate  it — lest,  under 
the  pretense  of  protection  and  regulation,  the  Federal  Government, 
under  the  influence  of  the  strong  and  increasing  anti-slavery  senti-* 
ment  which  prevailed  at  thaf  period,  might  destroy  the  institution, 
and  divest  those  rights  of  property  in  slaves  which  were  sacred  un- 


POPULAR   SOVEREIGNTY   IN   THE   TERRITORIES.  31 

tier  the  laws  and  constitutions  of  their  respective  States  so  long  as 
the  Federal  Government  had  no  power  to  interfere  with  the  subject. 

In  like  manner  the  non-slaveholding  States,  while  they  were  entire- 
ly willing  to  provide  for  the  surrender  of  all  fugitive  slaves — as  is 
conclusively  shown  by  the  unanimous  vote  of  all  the  States  in  .the 
Convention  for  the  provision  now  under  consideration — and  to  leave 
each  State  perfectly  free  to  hold  slaves  under  its  own  laws,  and  by 
virtue  of  its  own  separate  and  exclusive  authority,  so  long  as  it 
pleased,  and  to  abolish  it  when  it  chose,  were  unwilling  to  become 
responsible  for  its  existence  by  incorporating  it  into  the  Constitution 
as  a  national  institution,  to  be  protected  and  regulated,  extended  and 
controlled  by  Federal  authority,  regardless  of  the  wishes  of  the  peo- 
ple, and  in  defiance  of  the  local  laws  of  the  several  States  and  Terri- 
tories. For  these  opposite  reasons  the  Southern  and  Northern  States 
united  in  giving  a  unanimous  vote  in  the  Convention  for  that  provision 
of  the  Constitution  which  recognizes  slavery  as  a  local  institution  in 
the  several  States  where  it  exists,  "  under  the  laws  thereof,"  and  pro- 
vides for  the  surrender  of  fugitive  slaves. 

It  will  be  observed  that  the  term  "  State"  is  used  in  this  provision, 
as  well  as  in  various  other  parts  of  the  Constitution,  in  the  same  sense 
in  which  it  was  used  by  Mr.  Jefferson  in  his  plan  for  establishing  gov- 
ernments for  the  new  States  in  the  territory  ceded  and  to  be  ceded 
to  the  United  States,  and  by  Mr.  Madison  in  his  proposition  to  confer 
on  Congress  power  "  to  institute  temporary  governments  for  the  new 
States  arising  in  the  unappropriated  lands  of  the  United  States,"  to 
designate  the  political  communities,  Territories  as  well  as  States, 
within  the  dominion  of  the  United  States.  The  word  "  States"  is 
used  in  the  same  sense  in  the  ordinance  of  the  13th  July,  1787,  for 
the  government  of  the  territory  northwest  of  the  River  Ohio,  which 
was  passed  by  the  remnant  of  the  Congress  of  the  Confederation, 
sitting  in  New  York  while  its  most  eminent  members  were  at  Phila- 
delphia, as  delegates  to  the  Federal  Convention,  aiding  in  the  forma- 
tion of  the  Constitution  of  the  United  States. 

In  this  sense  the  word  "  States"  is  used  in  the  clause  providing  for 
the  rendition  of  fugitive  slaves,,  applicable  to  all  political  communities 
under  the  authority  of  the  United  States,  including  the  Territories  as 
well  as  the  several  States  of  the  Union.  Under  any  other  construc- 
tion the  right  of  the  owner  to  recover  his  slave  would  be  restricted 
to  the  States  of  the  Union,  leaving  the  Territories  a  secure  place*  of 
refuge  for  all  fugitives.  The  same  remark  is  applicable  to  the  clause 
of  the  Constitution  which  provides  that  "  a  person  charged  in  any 
State  with  treason,  felony,  or  other  crime,  who  shall  flee  from  justice, 
and  be  found  in  another  State,  shall,  on  the  demand  of  the  executive 
authority  of  the  State  from  which  he  fled,  be  delivered  up  to  be  re- 


32  POPULAR   SOVEREIGNTY   IN   THE   TERRITORIES. 

moved  to  the  State  having  jurisdiction  of  the  crime."  Unless  the 
term  State,  as  used  in  these  provisions  of  the  Constitution,  shall  be 
construed  to  include  every  distinct  political  community  under  the 
jurisdiction  of  the  United  States,  and  to  apply  to  Territories  as  well 
as  to  the  States  of  the  Union,  the  Territories  must  become  a  sanctu- 
ary for  all  the  fugitives  from  service  and  justice,  for  all  the  felons  and 
criminals  who  shall  escape  from  the  several  States  and  seek  refuge 
and  immunity  in  the  Territories. 

If  any  other  illustration  were  necessary  to  show  that  the  political 
communities  which  we  now  call  Territories  (but  which,  during  the 
whole  period  of  the  Confederation  and  the  formation  of  the  Constitu- 
tion, were  always  referred  to  as  "States"  or  "new  States"),  are  rec- 
ognized as  "  States"  in  some  of  the  provisions  of  the  Constitution, 
they  may  be  found  in  those  clauses  which  declare  that  "no  State" 
shah1  enter  into  any  "  treaty,  alliance,  or  confederation  ;  grant  letters 
of  marque  and  reprisal ;  com  money ;  emit  bills  of  credit ;  make  any 
thing  but  gold  and  silver  coin  a  tender  in  payment  of  debts ;  pass 
any  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts,  or  grant  any  title  of  nobility." 

It  must  be  borne  in  mind  that  in  each  of  these  cases  where  the 
power  is  not  expressly  delegated  to  Congress  the  prohibition  is  not 
imposed  upon  the  Federal  Government,  but  upon  the  States.  There 
was  no  necessity  for  any  such  prohibition  upon  Congress  or  the  Fed- 
eral Government,  for  the  reason  that  the  omission  to  delegate  any 
such  powers  in  the  Constitution  was  of  itself  a  prohibition,  and  so 
declared  in.  express  terms  by  the  10th  amendment,  which  declares 
that  "  the  powers  not  delegated  to  the  United  States  by  the  Consti- 
tution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people." 

Hence  it  would  certainly  be  competent  for  the  States  and  Territo- 
ries to  exercise  these  powers  but  for  the  prohibition  contained  in 
those  provisions  of  the  Constitution ;  and  inasmuch  as  the  prohibition 
only  extends  to  the  "  States,"  the  people  of  the  "  Territories"  are  still 
at  liberty  to  exercise  them,  unless  the  Territories  are  included  within 
the  term  States,  within  the  meaning  of  these  provisions  of  the  Con- 
stitution of  the  United  States. 

It  only  remains  to  be  shown  that  the  Compromise  Measures  of 
1850  and  the  Kansas-Nebraska  Act  of  1854  are  in  perfect  harmony 
with,  and  a  faithful  embodiment  of  the  principles  herein  enforced.  A 
brief  history  of  these  measures  will  disclose  the  principles  upon  which 
they  are  founded. 

On  the  29th  of  January,  1850,  Mr.  Clay  introduced  into  the  Senate 
a  series  of  resolutions  upon  the  slavery  question  which  were  intended 
to  form  the  basis  of  the  subsequent  legislation  upon  that  subject. 


POPULAR   SOVEEEIGNTY   IX  THE   TEEEITOEIES.  33 

Pending  the  discussion  of  these  resolutions  the  chairman  of  the  Com- 
mittee on  Territories  prepared  and  reported  to  the  Senate,  on  the 
25th  of  March,  two  bills — one  for  the  admission  of  California  into  the 
Union  of  States,  and  the  other  for  the  organization  of  the  Territories 
of  Utah  and  New  Mexico,  and  for  the  adjustment  of  the  disputed 
boundary  with  the  State  of  Texas,  which  were  read  twice  and  printed 
for  the  use  of  the  Senate.  On  the  19th  of  April  a  select  committee 
of  thirteen  was  appointed,  on  motion  of  Mr.  Foote,  of  Mississippi,  of 
which  Mr.  Clay  was  made  chairman,  and  to  which  were  referred  all 
pending  propositions  relating  to  the  slavery  question.  On  the  8th 
of  May,  Mr.  Clay,  from  the  select  committee  of  thirteen,  submitted  to 
the  Senate  an  elaborate  report  covering  all  the  points  in  controversy, 
accompanied  by  a  bill,  which  is  usually  known  as  the  "  Omnibus  Bill." 
By  reference  to  the  provisions  of  this  bill,  as  it  appears,  on  the  files 
of  the  Senate,  it  will  be  seen  that  it  is  composed  of  the  two  printed 
bills  which  had  been  reported  by  the  Committee  on  Territories  on 
the  25th  of  March  previous ;  and  that  the  only  material  change  in  its 
provisions,  involving  an  important  and  essential  principle,  is  to  be 
found  in  the  tenth  section,  which  prescribes  and  defines  the  powers 
of  the  Territorial  Legislature.  In  the  bill,  as  reported  by  the  Com- 
mittee on  Territories,  the  legislative  power  of  the  Territories  extended 
to  "  all  rightful  subjects  of  legislation  consistent  with  the  Constitu- 
tion of  the  United  States,"  icithout  excepting  African  Slavery  •  while 
the  bill,  as  reported  by  the  committee  of  thirteen,  conferred  the  same 
power  on  the  Territorial  Legislature,  with  the  exception  of  African 
Slavery.  This  portion  of  the  section  in  its  original  form  read  thus  : 

"And  be  it  further  enacted  that  the  legislative  power  of  the  Territory  shall  extend 
to  all  rightful  subjects  of  legislation  consistent  with  the  Constitution  of  the  United 
States  and  the  provisions  of  this  act ;  but  no  law  shall  be  passed  interfering  with  the 
primary  disposition  of  the  soil." 

To  which  the  committee  of  thirteen  added  these  words :  "Nor  in 
respect  to  African  slavery.'1''  When  the  bill  came  up  for  action  on 
the  15th  of  May,  Mr.  Davis,  of  Mississippi,  said : 

"  I  offer  the  following  amendment.  To  strike  out,  in  the  sixth  line  of  the  tenth 
section,  the  words  lin  respect  to  African  slavery,'  and  insert  the  words  'with  those 
rights  of  property  (/rowing  out  of  the  institution  of  African  slavery  as  it  eocists  in  any  of 
the  States  of  the  Union.'  The  object  of  the  amendment  is  to  prevent  the  Territorial 
Legislature  from  legislating  against  the  rights  of  property  growing  out  of  the  insti- 
tution of  slavery It  will  leave  to  the  Territorial  Legislatures  those  rights 

and  powers  which  are  essentially  necessary,  not  only  to  the  preservation  of  property, 
but  to  the  peace  of  the  Territory.  It  will  leave  the  right  to  make  such  police  regu- 
lations as  are  necessary  to  prevent  disorder,  and  which  will  be  absolutely  necessary 
with  such  property  as  that  to  secure  its  beneficial  use  to  its  owner.  With  this  brief 
explanation  I  submit  the  amendment." 

Mr.  Clay,  in  reply  to  Mr.  Davis,  said : 

"I  am  not  perfectly  sure  that  I  comprehend  the  full  meaning  of  the  amendment 


34  POPULAR   SOVEREIGNTY   IN  THE  TERRITORIES. 

offered  by  the  Senator  from  Mississippi.  If  I  do,  I  think  he  accomplishes  nothing  by 
striking  out  the  clause  now  in  the  bill  and  inserting  that  which  he  proposes  to  insert 
The  clause  now  in  the  bill  is,  that  the  Territorial  legislation  shall  not  extend  to  any 
thing  respecting  African  slavery  within  the  Territory.  The  effect  of  retaining  the 
clause  as  reported  by  the  Committee  will  be  this :  That  if  in  any  of  the  Territories 
slavery  now  exists,  it  shall  not  be  abolished  by  the  Territorial  Legislature ;  and  if  in 
any  of  the  Territories  slavery  does  not  now  exist,  it  can  not  be  introduced  by  the  Ter- 
ritorial Legislature.  The  clause  itself  was  introduced  into  the  bill  by  the  Committee 
for  the  purpose  of  tying  up  the  hands  of  the  Territorial  Legislature  in  respect  to 
legislating  at  all,  one  way  or  the  other,  upon  the  subject  of  African  slavery.  It  was 
intended  to  leave  the  legislation  and  the  law  of  the  respective  Territories  in  the  con- 
dition in  which  the  Act  will  find  them.  I  stated  on  a  former  occasion  that  I  did  not, 
in  Committee,  vote  for  the  amendment  to  insert  the  clause,  though  it  was  proposed 
to  be  introduced  by  a  majority  of  the  Committee.  I  attached  very  little  consequence 
to  it  at  the  time,  and  I  attach  very  little  to  it  at  present.  It  is  perhaps  of  no  partic- 
ular importance  whatever.  Now,  sir,  if  I  understand  the  measure  proposed  by  the 
Senator  from  Mississippi,  it  aims  at  the  same  thing.  I  do  not  understand  him  as 
proposing  that  if  any  one  shall  carry  slaves  into  the  Territory — although  by  the  laws 
of  the  Territory  he  can  not  take  them  there — the  legislative  hands  of  the  Territorial 
government  should  be  so  tied  as  to  prevent  it  saying  he  shall  not  enjoy  the  fruits  of 
their  labor.  If  the  Senator  from  Mississippi  means  to  say  that — " 

Mr.  Davis : 

"I  do  mean  to  say  it." 

Mr.  Clay: 

"If  the  object  of  the  Senator  is  to  provide  that  slaves  may  be  introduced  into  the 
Territory  contrary  to  the  lex  loci,  and,  being  introduced,  nothing  shall  be  done  by  the 
Legislature  to  impair  the  rights  of  owners  to  hold  the  slaves  thus  brought  contrary 
to  the  local  laws,  I  certainly  can  not  vote  for  it.  In  doing  so  I  shall  repeat  again  the 
expression  of  opinion  which  I  announced  at  an  early  period  of  the  session." 

Here  we  find  the  line  distinctly  drawn  between  those  who  con- 
tended for  the  right  to  carry  slaves  into  the  Territories  and  hold  them 
in  defiance  of  the  local  law,  and  those  who  contended  that  such  right 
was  subject  to  the  local  law  of  the  Territory.  During  the  progress 
of  the  discussion  on  the  same  day  Mr.  Davis,  of  Mississippi,  said : 

"We  are  giving,  or  proposing  to  give,  a  government  to  a  Territory,  which  act 
rests  upon  the  basis  of  our  right  to  make  such  provision.  We  suppose  we  have  a 
right  to  confer  power.  If  so,  we  may  mark  out  the  limit  to  which  they  may  legislate, 
and  are  bound  not  to  confer  power  beyond  that  which  exists  in  Congress.  If  we 
give  them  power  to  legislate  beyond  that  we  commit  a  fraud  or  usurpation,  as  it  may 
be  done  openly,  covertly,  or  indirectly. 

To  which  Mr.  Clay  replied : 

' '  Now,  sir,  I  only  repeat  what  I  have  had  occasion  to  say  before,  that  while  I  am 
willing  to  stand  aside  and  make  no  legislative  enactment  one  way  or  the  other — to 
lay  off  the  Territories  without  the  Wilmot  Proviso,  on  the  one  hand,  with  which  I 
understand  we  are  threatened,  or  without  an  attempt  to  introduce  a  clause  for  the 
introduction  of  slavery  into  the  Territories.  While  I  am  for  rejecting  both  the  one 
and  the  other,  I  am  content  that  the  law  as  it  exists  shall  prevail ;  and  if  there  be 
any  diversity  of  opinion  as  to  what  it  means,  I  am  willing  that  it  shall  be  settled  by 
the  highest  judicial  authority  of  the  country.  While  I  am  content  thus  to  abide  the 
result,  I  must  say  that  I  can  not  vote  for  any  express  provision  recognizing  the  right 
to  carry  slaves  there." 


POPULAR  SOVEREIGNTY  IN  THE  TERRITORIES.  35 

To  which  Mr.  Davis  rejoined,  that — 

"It  is  said  our  Kevolution  grew  out  of  a  preamble ;  and  I  hope  we  have  some- 
thing of  the  same  character  of  the  hardy  men  of  the  Kevolution  who  first  commenced 
the  war  with  the  mother  country — something  of  the  spirit  of  that  bold  Yankee  who 
said  he  had  a  right  to  go  to  Concord,  and  that  go  he  would ;  and  who,  in  the  main- 
tenance of  that  right,  met  his  death  at  the  hands  of  a  British  sentinel.  Now,  sir, 
if  our  right  to  carry  slaves  into  these  Territories  be  a  constitutional  right,  it  is  our 
first  duty  to  maintain  it." 

Pending  the  discussion  which  ensued  Mr.  Davis,  at  the  suggestion 
of  friends,  modified  his  amendment  from  time  to  time,  until  it  assumed 
the  following  shape : 

' '  Nor  to  introduce  or  exclude  African  slavery.  Provided  that  nothing  herein  con- 
tained shall  be  construed  so  as  to  prevent  said  Territorial  Legislature  from  passing 
such  laws  as  may  be  necessary  for  the  protection  of  the  rights  of  property  of  every 
kind  which  may  have  been,  or  may  be  hereafter,  conformably  to  the  Constitution  of 
the  United  States,  held  in  or  introduced  into  said  Territory." 

To  which,  on  the  same  day,  Mr.  Chase,  of  Ohio,  offered  the  follow- 
ing amendment : 

"  Provided  further,  That  nothing  herein  contained  shall  be  construed  as  authoriz- 
ing or  permitting  the  introduction  of  slavery  or  the  holding  of  persons  as  property 
within  said  Territory." 

Upon  these  amendments — the  one  affirming  the  pro-slavery  and 
the  other  the  anti-slavery  position,  in  opposition  to  the  right  of  the 
people  of  the  Territories  to  decide  the  slavery  question  for  them- 
selves— Mr.  Douglas  said : 

"The  position  that  I  have  ever  taken  has  been,  that  this,  and  all  other  questions 
relating  to  the  domestic  affairs  and  domestic  policy  of  the  Territories,  ought  to  be  left 
to  the  decision  of  the  people  themselves ;  and  that  we  ought  to  be  content  with  what- 
ever way  they  may  decide  the  question,  because  they  have  a  much  deeper  interest  in 
these  matters  than  we  have,  and  know  much  better  what  institutions  suit  them  than 
we,  who  have  never  been  there,  can  decide  for  them.  I  would  therefore  have  much 
preferred  that  that  portion  of  the  bill  should  have  remained  as  it  was  reported  from 
the  Committee  on  Territories,  with  no  provision  on  the  subject  of  slavery,  the  one  way 
or  the  other.  And  I  do  hope  yet  that  that  clause  will  be  stricken  out.  I  am  satis- 
fied, sir,  that  it  gives  no  strength  to  the  bill.  I  am  satisfied,  even  if  it  did  give 
strength  to  it,  that  it  ought  not  to  be  there,  because  it  is  a  violation  of  principle — a 
violation  of  that  principle  upon  which  we  have  all  rested  our  defense  of  the  coursai 
we  have  taken  on  this  question.  I  do  not  see  how  those  of  us  who  have  taken  the 
position  we  have  taken — that  of  non-intervention — and  have  argued  in  favor  of  the 
right  of  the  people  to  legislate  for  themselves  on  this  question,  can  support  such  a 
provision  without  abandoning  all  the  arguments  which  we  used  in  the  Presidential 
campaign  in  the  year  1848,  and  the  principles  set  forth  by  the  honorable  Senator 
from  Michigan  (Mr.  Cass)  in  that  letter  which  is  known  as  the  'Nicholson  Letter.' 
We  are  required  to  abandon  that  platform ;  we  are  required  to  abandon  those  prin- 
ciples, and  to  stultify  ourselves,  and  to  adopt  the  opposite  doctrine — and  for  what  ? 
In  order  to  say  that  the  people  of  the  Territories  shall  not  have  such  institutions  as  they 
shall  deem  adapted  to  their  condition  and  their  wants.  I  do  not  see,  sir,  how  such  a 
provision  can  be  acceptable  either  to  the  people  of  the  North  or  the  South." 

Upon  the  question,  how  many  inhabitants  a  Territory  should  con- 


36  POPULAE   SOVEKEIGXTY   IN  THE  TEEKITORIES. 

tain  before  it  should  be  formed  into  a  political  community  with  the 
rights  of  self-government,  Mr.  Douglas  said : 

"The  Senator  from  Mississippi  puts  the  question  to  me  as  to  what  number  of 
people  there  must  be  in  a  Territory  before  this  right  to  govern  themselves  accrues. 
Without  determining  the  precise  number,  I  will  assume  that  the  right  ought  to  ac- 
crue to  the  people  at  the  moment  they  have  enough  to  constitute  a  government ; 
and,  sir,  the  bill  •  assumes  that  there  are  people  enough  there  to  require  a  govern- 
ment, and  enough  to  authorize  the  people  to  govern  themselves Your  bill 

concedes  that  a  representative  government  is  necessary — a  government  founded  upon 
the  principles  of  popular  sovereignty  and  the  right  of  a  people  to  enact  their  own 
laws ;  and  for  this  reason  you  give  them  a  Legislature  composed  of  two  branches, 
like  the  Legislatures  of  the  different  States  and  Territories  of  the  Union.  You  con-' 
fer  upon  them  the  right  to  legislate  on  'all  rightful  subjects  of  legislation,'  except 
negroes.  Why  except  negroes  ?  Why  except  African  slavery  ?  If  the  inhabitants 
are  competent  to  govern  themselves  upon  all  other  subjects,  and  in  reference  to  all 
other  descriptions  of  property — if  they  are  competent  to  make  laws  and  determine 
the  relations  between  husband  and  wife,  and  parent  and  child,  and  municipal  laws 
affecting  the  rights  and  property  of  citizens  generally,  they  are  competent  also  to 
make  laws  to  govern  themselves  in  relation  to  slavery  and  negroes. " 

"With  reference  to  the  protection  of  property  in  slaves,  Mr.  Douglas 
said: 

"  I  have  a  word  to  say  to  the  honorable  Senator  from  Mississippi  (Mr.  Davis). 
He  insists  that  I  am  not  in  favor  of  protecting  property,  and  that  his  amendment  is 
offered  for  the  purpose  of  protecting  property  under  the  Constitution.  Now,  sir,  I 
ask  you  what  authority  he  has  for  assuming  that  ?  Do  I  not  desire  to  protect  prop- 
erty because  I  wish  to  allow  the  people  to  pass  such  laws  as  they  deem  proper  re- 
specting their  rights  to  property  without  any  exception  ?  He  might  just  as  well  say 
that  I  am  opposed  to  protecting  property  in  merchandise,  in  steamboats,  in  cattle,  in 
real  estate,  as  to  say  that  I  am  opposed  to  protecting  property  of  any  other  descrip- 
tion ;  for  I  desire  to  put  them  all  on  an  equality,  and  allow  the  people  to  make  their 
own  laws  in  respect  to  the  whole  of  them." 

Mr.  Cass  said  (referring  to  the  amendments  offered  by  Mr.  Davis 
and  Mr.  Chase) : 

"Now  with  respect  to  the  amendments.  I  shall  vote  against  them  both;  and 
then  I  shall  vote  in  favor  of  striking  out  the  restriction  in  the  bill  upon  the  power  of 
the  Territorial  governments.  I  shall  do  so  upon  this  ground.  I  was  opposed,  as  the 
honorable  Senator  from  Kentucky  has  declared  he  was,  to  the  insertion  of  this  pro- 
hibition by  the  Committee.  I  consider  it  inexpedient  and  unconstitutional.  I  have 
already  stated  my  belief  that  the  rightful  power  of  internal  legislation  in  the  Terri- 
tories belongs  to  the  people." 

After  further  discussion  the  vote  was  taken  by  yeas  and  nays  on 
the  amendment  of  Mr.  Chase,  and  decided  in  the  negative :  Yeas,  25 ; 
Nays,  30.  The  question  recurring  on  the  amendment  of  Mi*.  Davis, 
of  Mississippi,  it  was  also  rejected :  Yeas,  25 ;  Nays,  30.  Where- 
upon Mr.  Seward  offered  the  following  amendment : 

"  Neither  slavery  nor  involuntary  servitude,  otherwise  than  by  conviction  for  crime, 
shall  ever  be  allowed  in  either  of  said  Territories  of  Utah  and  New  Mexico." 

Which  was  rejected — Yeas,  23  ;  Nays,  33. 

After  various  other  amendments  had  been  offered  and  voted  upon 


POPULAR   SOVEREIGNTY   IN   THE   TERRITORIES.  37 

— all  relating  to  the  power  of  the  Territorial  Legislature  over  slavery 
— Mr.  Douglas 'moved  to  strike  out  all  relating  to  African  Slavery,  so 
that  the  Territorial  Legislature  should  have  the  same  power  over 
that  question  as  over  all  other  rightful  subjects  of  legislation  consist- 
ent with  the  Constitution — which  amendment  was  rejected.  After 
the  rejection  of  this  amendment,  the  discussion  was  renewed  with 
great  ability  and  depth  of  feeling  in  respect  to  the  powers  which  the 
Territorial  Legislature  should  exercise  upon  the  subject  of  slavery. 
Various  propositions  were  made,  and  amendments  offered  and  re- 
jected— all  relating  to  this  one  controverted  point — when  Mr.  Norris, 
of  New  Hampshire,  renewed  the  motion  of  Mr.  Douglas,  to  strike  out 
the  restriction  on  the  Territorial  Legislature  in  respect  to  African 
Slavery.  On  the  31st  of  July  this  amendment  was  adopted  by  a  vote 
of  32  to  19 — restoring  this  section  of  the  bill  to  the  form  in  which  it 
was  reported  from  the  Committee  on  Territories  on  the  25th  of 
March,  and  conferring  on  the  Territorial  Legislature  power  over  "  all 
rightful  subjects  of  legislation  consistent  with  the  Constitution  of  the 
United  States,"  without  excepting  African  Slavery. 

Thus  terminated  this  great  struggle  in  the  affirmance  of  the  prin- 
ciple, as  the  basis  of  the  compromise  measures  of  1850,  so  far  as  they 
related  to  the  organization  of  the  Territories,  that  the  people  of  the 
Territories  should  decide  the  slavery  question  for  themselves  through 
the  action  of  their  Territorial  Legislatures. 

This  controverted  question  having  been  definitely  settled,  the  Sen- 
ate proceeded  on  the  same  day  to  consider  the  other  portions  of  the 
bill,  and  after  striking  out  all  except  those  provisions  which  provided 
for  the  organization  of  the  Territory  of  Utah,  ordered  the  bill  to  be 
engrossed  for  a  third  reading,  and  on  the  next  day — August  1, 1850 
— the  bill  was  read  a  third  time,  and  passed. 

On  the  14th  of  August  the  bill  for  the  organization  of  the  Terri- 
tory of  New  Mexico  was  taken  up,  and  amended  so  as  to  conform 
fully  to  the  provisions  of  the  Utah  Act  in  respect  to  the  power  of  the 
Territorial  Legislature  over  "  all  rightful  subjects  of  legislation  con- 
sistent with  the  Constitution,"  without  excepting  African  Slavery,  and 
was  ordered  to  be  engrossed  for  a  third  reading  without  a  division ; 
and  on  the  next  day  the  bill  was  passed — Yeas,  27 ;  Nays,  10. 

These  two  bills  were  sent  to  the  House  of  Representatives,  and 
passed  that  body  without  any  alteration  in  respect  to  the  power  of 
the  Territorial  Legislatures  over  the  subject  of  slavery,  and  were  ap- 
proved by  President  Filmore  September  9, 1850. 

In  1852,  when  the  two  great  political  parties — Whig  and  Demo- 
cratic— into  which  the  country  was  then  divided,  assembled  in  Na- 
tional Convention  at  Baltimore  for  the  purpose  of  nominating  candi- 
dates for  the  Presidency  and  Vice-Presidency,  each  Convention 
adopted  and  affirmed  the  principles  embodied  in  the  compromise 

306595 


38  POPULAR  SOVEREIGNLY  IX  THE  TERRITORIES. 

measures  of  1850  as  rules  of  action  by  which  they  would  be  govern- 
ed in  all  future  cases  in  the  organization  of  Territorial  governments 
and  the  admission  of  new  States. 

On  the  4th  of  January,  1854,  the  Committee  on  Territories  of  the 
Senate,  to  which  had  been  referred  a  bill  for  the  organization  of  the 
Territory  of  Nebraska,  reported  the  bill  back,  with  an  amendment, 
in  the  form  of  a  substitute  for  the  entire  bill,  which,  with  some  modi- 
fications, is  now  known  on  the  statute  book  as  the  "  Kansas-Nebraska 
Act,"  accompanied  by  a  Report  explaining  the  principles  upon  which 
it  was  proposed  to  organize  those  Territories,  as  follows : 

"The  principal  amendments  which  your  Committee  deem  it  their  duty  to  com- 
mend to  the  favorable  action  of  the  Senate,  in  a  special  report,  are  those  in  which 
the  principles  established  by  the  Compromise  Measures  of  1850,  so  far  as  they  are 
applicable  to  territorial  organizations,  are  proposed  to  be  affirmed  and  carried  into 
practical  operation  within  the  limits  of  the  new  Territory.  The  wisdom  of  those 
measures  is  attested,  not  less  by  their  salutary  and  beneficial  effects  in  allaying  sec- 
tional agitation  and  restoring  peace  and  harmony  to  an  irritated  and  distracted 
people,  than  by  the  cordial  and  almost  universal  approbation  with  which  they  have 
been  received  and  sanctioned  by  the  whole  country. 

"  In  the  judgment  of  your  Committee,  those  measures  were  intended  to  have  a  far 
more  comprehensive  and  enduring  effect  than  the  mere  adjustment  of  the  difficulties 
arising  out  of  the  recent  acquisition  of  Mexican  territory.  They  were  designed  to 
establish  certain  great  principles,  which  would  not  only  furnish  adequate  remedies 
for  existing  evils,  but,  in  all  time  to  come,  avoid  the  perils  of  a  similar  agitation,  by 
withdrawing  the  question  of  slavery  from  the  Halls  of  Congress  and  the  political 
arena,  and  committing  it  to  the  arbitrament  of  those  who  were  immediately  inter- 
ested in  and  alone  responsible  for  its  consequences.  With  a  view  of  conforming  their 
action  to  the  settled  policy  of  the  Government,  sanctioned  by  the  approving  voice  of 
the  American  people,  your  Committee  have  deemed  it  their  duty  to  incorporate  and 
perpetuate,  in  their  territorial  biD,  the  principles  and  spirit  of  those  measures." 

After  presenting  and  reviewing  certain  provisions  of  the  bill,  the 
Committee  conclude  as  follows : 

"From  these  provisions  it  is  apparent  that  the  Compromise  Measures  of  1850  af- 
firm and  rest  upon  the  following  propositions : 

"  'First. — That  all  questions  pertaining  to  slavery  in  the  Territories,  and  in  the 
new  States  to  be  formed  therefrom,  are  to  be  left  to  the  decision  of  the  people  resid- 
ing therein,  by  their  appropriate  representatives  to  be  chosen  by  them  for  that  purpose. 

"  '  Second.— That  all  cases  involving  title  to  slaves  and  questions  of  personal  free- 
dom, are  referred  to  the  adjudication  of  the  local  tribunals,  with  the  right  of  appeal 
to  the  Supreme  Court  of  the  United  States. 

"  "Third.— That  the  provision  of  the  Constitution  of  the  United  States  in  respect 
to  fugitives  from  service,  is  to  be  carried  into  faithful  execution  in  all  the  organized 
Territories,  the  same  as  in  the  States.  The  substitute  for  the  bill  which  your  Com- 
mittee have  prepared,  and  which  is  commended  to  the  favorable  action  of  the  Senate, 
proposes  to  carry  these  propositions  and  principles  into  practical  operation,  in  the 
precise  language  of  the  Compromise  Measures  of  1850.'  " 

By  reference  to  that  section  of  the  "  Kansas-Nebraska  Act"  as  it 
now  stands  on  the  statute  book,  which  prescribed  and  defined  the 
power  of  the  Territorial  Legislature,  it  will  be  seen  that  it  is,  "  in  the 


POPULAK  SOVEREIGNTY  IN  THE  TEEEITOEIES.  39 

precise  language  of  the  Compromise  Measures  of  1850,"  extending 
the  legislative  power  of  the  Territory  "  to  all  rightful  subjects  of 
legislation  consistent  with  the  Constitution,"  without  excepting  Af- 
rican Slavery. 

It  having  been  suggested,  with  some  plausibility,  during  the  dis- 
cussion of  the  bill,  that  the  act  of  Congress  of  March  6, 1820,  pro- 
hibiting slavery  north  of  the  parallel  of  36°  30'  would  deprive  the 
people  of  the  Territory  of  the  power  of  regulating  the  slavery  ques- 
tion to  suit  themselves  while  they  should  remain  in  a  territorial  con- 
dition, and  before  they  should  have  the  requisite  population  to  entitle 
them  to  admission  into  the  Union  as  a  State,  an  amendment  was  pre- 
pared by  the  chairman  of  the  Committee,  and  incorporated  into  the 
bill  to  remove  this  obstacle  to  the  free  exercise  of  the  principle  of 
popular  sovereignty  in  the  Territory,  while  it  remained  in  a  territorial 
condition,  by  repealing  the  said  act  of  Congress,  and  declaring  the 
true  intent  and  meaning  of  all  the  friends  of  the  bill  in  these  words : 

"That  the  Constitution  and  all  laws  of  the  United  States  which  are  not  locally  in- 
applicable, shall  have  the  same  force  and  effect  within  the  Territory  as  elsewhere 
within  the  United  States,  except  the  eighth  section  of  the  act  preparatory  to  the  ad- 
mission of  Missouri  into  the  Union,  approved  March  6,  1820,  which  being  inconsist- 
ent with  the  principle  of  non-intervention  by  Congress  with  slavery  in  the  States  and 
Territories,  as  recognized  by  the  legislation  of  1850,  commonly  called  the  '  Compro- 
mise Measures,'  is  hereby  declared  inoperative  and  void — it  being  the  true  intent  and 
meaniny  of  this  act  not  to  legislate  slavery  into  any  Territory  or  State,  nor  to  exclude  it 
therefrom,  but  to  leave  the  people  thereof  perfectly  free  to  form  and  regulate  their  domes- 
tic institutions  their  own  way,  subject  only  to  the  Constitution  of  the  United  States." 

To  which  was  added,  on  motion  of  Mr.  Badger,  the  following : 
"Provided,  That  nothing  herein  contained  shall  be  construed  to  revive  or  put  in 
force  any  law  or  regulation  which  may  have  existed  prior  to  the  act  of  the  sixth  of 
March,  1820,  either  protecting,  establishing,  or  abolishing  slavery." 

In  this  form,  and  with  this  distinct  understanding  of  its  "  true  in- 
tent and  meaning,"  the  bill  passed  the  two  houses  of  Congress,  and 
became  the  law  of  the  land  by  the  approval  of  the  President,  May 
30, 1854. 

In  1856,  the  Democratic  party,  assembled  in  National  Convention 
at  Cincinnati,  declared  by  a  unanimous  vote  of  the  delegates  from 
every  State  in  the  Union,  that 

"The  American  Democracy  recognize  and  adopt  the  principles  contained  in  the 
organic  laws  establishing  the  Territories  of  Kansas  an.d  Nebraska  as  embodying  the 
only  sound  and  safe  solution  of  the  '  slavery  question, '  upon  which  the  great  national 
idea  of  the  people  of  this  whole  country  can  repose  in  its  determined  conservatism 
of  the  Union — non-interference  by  Congress  with  slavery  in  State  and  Territory,  or 
in  the  District  of  Columbia;" 

"That  this  was  the  basis  of  the  Compromises  of  1850,  confirmed  by  both  the 
Democratic  and  Whig  parties  in  National  Conventions— ratified  by  the  people  in 
the  election  of  1852 — and  rightly  applied  to  the  organization  of  the  Territories  in 
1854 ;  That  by  the  uniform  application  of  this  Democratic  principle  to  the  organiza- 
tion of  Territories  and  to  the  admission  of  new  States,  with  or  without  domestic 


40 


POPULAR   SOVEREIGNTY   IN   TUB   TERRITORIES. 


slavery  as  they  may  elect,  the  equal  rights  of  all  will  be  preserved  intact  —  the  original 
compacts  of  the  Constitution  maintained  inviolate  —  and  the  perpetuity  and  expansion 
of  this  Union  insured  to  its  utmost  capacity  of  embracing  in  peace  and  harmony  any 
future  American  State  that  may  be  constituted  or  annexed  with  a  Kepublican  form 
of  government." 

In  accepting  the  nomination  of  this  Convention,  Mr.  Buchanan,  in 
a  letter  dated  June  16,  1856,  said: 

"The  agitation  on  the  question  of  domestic  slavery  has  too  long  distracted  and 
divided  the  people  of  this  Union,  and  alienated  their  affections  from  each  other. 
This  agitation  has  assumed  many  forms  since  its  commencement,  but  it  now  seems 
to  be  directed  chiefly  to  the  Territories  ;  and  judging  from  its  present  character,  I 
think  we  may  safely  anticipate  that  it  is  rapidly  approaching  a  '  finality.'  The  re- 
cent legislation  of  Congress  respecting  domestic  slavery,  derived,  as  it  has  been,  from 
the  original  and  pure  fountain  of  legitimate  political  power,  the  will  of  the  majority, 
promises,  ere  long,  to  allay  the  dangerous  excitement.  This  legislation  is  founded 
upon  principles  as  ancient  as  free  government  itself,  and  in  accordance  with  them 
has  simply  declared  that  the  people  of  a  Territory,  like  those  of  a  State,  shall  decide 
for  themselves  whether  slavery  shall  or  shall  not  exist  within  their  limits." 

This  exposition  of  the  history  of  these  measures  shows  conclusive- 
ly that  the  authors  of  the  Compromise  Measures  of  1850,  and  of  the 
Kansas-Nebraska  Act  of  1854,  as  well  as  the  members  of  the  Con- 
tinental Congress  of  1774,  and  the  founders  of  our  system  of  govern- 
ment subsequent  to  the  Revolution,  regarded  the  people  of  the  Terri- 
tories and  Colonies  as  political  Communities  which  were  entitled  to 
a  free  and  exclusive  power  of  legislation  in  their  Provincial  Legis- 
latures, where  their  representation  could  alone  be  preserved,  in  all 
cases  of  taxation  and  internal  polity.  This  right  pertains  to  the 
people  collectively  as  a  law-abiding  and  peaceful  community,  and  not 
to  the  isolated  individuals  who  may  wander  upon  the  public  domain 
in  violation  of  law.  It  can  only  be  exercised  where  there  are  inhabit- 
ants sufficient  to  constitute  a  government,  and  capable  of  performing 
its  various  functions  and  duties  —  a  fact  to  be  ascertained  and  determ- 
ined by  Congress.  Whether  the  number  shall  be  fixed  at  ten,  fif- 
teen, or  twenty  thousand  inhabitants  does  not  affect  the  principle. 

The  principle,  under  our  political  system,  is  that  every  distinct 
political  Community,  loyal  to  the  Constitution  and  the  Union,  is 
entitled  to  all  the  rights,  privileges,  and  immunities  of  self-govern- 
ment in  respect  to  their  local  concerns  and  internal  polity,  subject 
only  to  the  Constitution.  of  the  United  States. 


3  1158  00595  7 


